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'     Law  ^"'--3  Of 

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SUrWEME  COURT  BUILDING 
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^4^^^/ 


AN    ESSAY 

ON 

THE    PRINCIPLES 

OF 

CIRCUMSTANTIAL  EVIDENCE 

XUusttattti  i)^  ISTumcrous  (tantn 

BY   THE    LATE 

WILLIAM   WILLS,  Esq. 

JUSTICE    OF   THE    PEACE 

EDITED    BY   HIS   SON 

SIR    ALFRED   WILLS,   Knt. 

ONE    OF    HIS   MAJESTY'S  JUDGES    OF   THE    HIGH    COURT   OF  JUSTICE 

FIFTH    ENGLISH    EDITION    (1902) 


WITH    AMERICAN    NOTES 

By   GEORGE    E.    BEERS 

OF   THE    NEW    HAVEN    BAR;    OF   THE    FACULTY   OF    THE   YALE    LAW   SCHOOL 
AND 

ARTHUR   L.  CORBIN 

OF  THE  FACULTY  OF  THE  YALE  LAW  SCHOOL 


BOSTON,  MASS. 
THE    BOSTON    BOOK   COMPANY 

Eafaj  ^ublisfjcrs 
1905 


Copyright,  1905 
By  The  Boston  Book  Company 


MJ  U"^^^^ 


\'^  nc;, 


iM 


PREFATORY  NOTE. 

In  the  present  edition  tlie  English  text  is  pre- 
served intact,  the  American  notes  following  at  the 
end  of  each  chapter.  While  the  primary  object  has 
been  to  furnish  a  working  tool  for  the  profession,  it 
is  the  hope  of  the  American  editor  that  it  may  be 
said  of  the  notes,  as  it  has  so  long  been  said  of  the 

"^         text,  that  much  is  embraced  in  them  of  vital  human 

-^         interest  to  both  lawyer  and  layman. 

While  the  work  was  originally  undertaken  by 
Mr.  Beers,  he  was  prevented  by  professional  en- 
gagements from  giving  that  continuity  of  attention 
which  labor  of  this  character  demands.  He  desires 
to  express  his  obligation  to  Mr.  Arthur  L.  Corbin, 
assistant  professor  in  the  Yale  Law  School,  for  his 
effective  assistance  in  the  undertakino:.  He  is  also 
indebted  for  much  aid  and  many  kindnesses  to  Mr. 
Charles  F.  Chamberlayne,  who  has  placed  a  large 
amount  of  material  at  his  disposal  and  has  ever 
been  ready  with  suggestions  and  encouragement. 

G.  E.  B. 

42  Church  St., 

New  Haven,  Conn., 
June  22,  1905 


o^ 


PREFACE 

TO    THE    FIFTH    EDITION. 


This  work  of  my  father's  having  met  with 
a  favourable  reception  from  the  legal  pro- 
fession as  well  when  originally  published 
in  1838  as  upon  the  publication  of  later 
editions  in  1850  and  1862,  I  have  thought 
that  a  further  edition,  illustrated  by  later 
cases,  many  of  which  have  come  under  my 
own  personal  observation,  might  fairly  be 
attempted. 

Some  modifications  of  the  original  text  have 
necessarily  been  introduced.  The  nature  of 
my  professional  life  has  brought  me  into 
closer  touch  with  many  of  the  questions 
discussed  than  could  be  the  case  with  my 
father,  who  was  for  many  years  a  solicitor 
in  large  practice  at  Birmingham.  The  text 
has  been  most  carefully  revised  and  recon- 
sidered throughout,  but  it  is  no  more  than 
is    due  to   him    to    say   that    in    substantial 


VI  PREFACE. 

matters  I  have  foiiiul  very  little  to  alter.  I 
did  at  one  time  contemplate  indicating  the 
alterations  by  brackets,  but  I  found  the  plan 
jjractically  impossible;  and  I  am  quite  sure 
that  my  father  would  not  have  objected  to 
the  amalgamation  of  our  respective  parts  in 
the  joint  work.  To  him  must  always  belong 
the  principal  share  of  any  credit  this  volume 
may  deserve. 

The  additional  matter,  therefore,  which  will 
be  found  in  this  edition  consists  largely  of 
illustrations  of  the  principles  laid  down  in 
the  text  drawn  from  cases  of  a  later  date 
than  that  of  the  last  edition.  In  some  of 
them  I  have  been  engaged  as  counsel,  some 
I  have  tried  as  a  judge,  some  I  have  gathered 
from  the  relation  of  friends  upon  whom  I 
could  depend.  The  rest  have  been  found  for 
me  in  the  Old  Bailey  Sessions  Papers,  in  the 
fdes  .of  The  Times  or  other  contemporary 
records.  For  the  use  made  of  them  I  am 
responsible. 

From  the  section  at  the  end  of  the  work 
containing  details  of  some  remarkable  cases 
illustrative  of  the  proving  force  of  circum- 
stantial evidence,   one  case   [Reg.   v.   Smithy 


PREFACE.  vii 

VaruJiam,  and  Timms)  has  been  omitted 
which  upon  consideration  did  not  appear  to 
be  of  sufficient  interest  to  justify  its  retention. 
On  the  other  hand,  three  new  cases  will  be 
found  which  are  perhaps  as  remarkable  in 
this  connection  as  any  which  have  ever  been 
tried  :  the  Matlock  PVill  case,  in  which  I  was 
counsel,  the  case  of  Howe  v.  Bur  char  dt  and 
anof/ier,  which  I  tried,  and  the  YarmoMth 
Mnrder  case.  The  Matlock  IVill  case  and 
Howe  V.  Burchardt  are  distinguished  by  one 
very  curious  circumstance  which  I  do  not 
remember  to  have  seen  or  heard  of  in  any 
other  instance.  In  each,  the  question  in  the 
cause  was  whether  certain  documents  were 
forgeries.  In  each,  it  ultimately  turned  out 
that  a  single  stroke  of  the  pen  afforded  an 
absolutely  infallible  test  of  the  genuineness 
of  the  documents  in  question.  In  each  case, 
the  indication  had  escaped  the  observation  of 
the  experts,  and  I  was  fortunate  enough  to 
discover  it. 

In    the    present    edition    both    quotations 
and  references  have  been  carefully  revised. 

The  original  work  met  with  much  recog- 
nition abroad  as  well  as  at  home,  and  it  was 


Vlll  PREFACE. 


a  source  of  natural  gratification  to  my  father 
that  it  had  brought  him  into  personal  relations 
with  some  very  eminent  juridical  writers — 
amongst  others,  with  Dr.  Mittermaier  in 
Germany,  and  with  Professor  Greenlcaf  in 
the  United  States,  from  both  of  whom  I 
found  interesting  letters  amongst  my  father's 
papers  after  his  death. 

In  the  United  States  an  edition  was 
published  during  the  author's  lifetime,  and 
another,  if  not  more  than  one,  after  his  death. 
I  possess  a  reprint  of  the  edition  of  1862, 
published  in  Philadelphia  in  1881,  which  is 
styled  "  Sixth  American  from  the  Fourth 
London  Edition."  Literary  property  in 
books  by  English  authors  had  at  that  time 
no  recognition  in  the  United  States.  It  is 
still  recognized  only  on  terms  too  onerous 
to  make  it  worth  while,  with  a  work  of 
limited  circulation,  to  claim  the  protection 
of  American  law.  Arrangements  have  been 
made,  however,  with  a  Boston  firm,  which, 
if  they  give  no  appreciable  pecuniary  advan- 
tage to  myself  as  the  owner  of  the  English 
copyright,  at  least  secure  that  an  edition  shall 
be  published  in  the  United  States  identical  in 
matter  v./ith  the  English  edition. 


PREFACE.  ix 

There  is  some  reason  for  a  wish  that  this 
should  be  possible.  Amongst  the  American 
admirers  of  the  edition  published  in  1862 — 
if  admiration  may  be  fairly  inferred  from 
wholesale  appropriation  —  is  a  gentleman 
who  published  in  1896,  at  Philadelphia,  a 
volume  entitled  ''  A  Treatise  on  the  Law 
of  Circumstantial  Evidence,  illustrated  by 
numerous  cases,  by  Arthur  P.  Will,  of  the 
Chicago  Bar."  Mr.  Will's  book  contains 
a  considerable  amount  of  original  matter — ■ 
perhaps  about  half  of  the  volume  is  his  own 
— and  is  especially  rich  in  American  cases. 
In  a  short  preface  Mr.  Will  says  : 

**  The  writer,  in  presenting  to  the  profession  a 
volume  thoroughly  American,  begs  to  acknowledge 
his  indebtedness  to  the  essay  of  Mr.  William  Wills, 
the  last  edition  of  which  was  prepared  by  his  son, 
Judge  Alfred  Wills.  It  has  been  thought  wisest 
to  follow  Mr.  W^ills's  plan  in  its  main  divisions, 
and  to  preserve  much  that  is  valuable  in  his 
scientific  discussion  concerning  the  phenomena 
on  which  the  rules  of  circumstantial  evidence 
are  based." 

The  edition  of  1862  which  is  here  referred 
to  contains  315  pages.  Of  these,  six  con- 
stitute a  section  on  "Statutory  Presump- 
tions," which  deals  exclusively  with  English 


X  PREFACE. 

statute  law,  and  therefore  was  not  likely  to 
be  useriil  to  Mr.  Will.  Of  the  remaining 
309  jxi^es,  Mr.  Will  has  appropriated  all 
but  an  insignificant  fraction  (a).  The  very 
divisions  are  in  most  cases  preserved,  the 
only  difference  being  that  they  are  often 
called  "chapters"  instead  of  sections.  The 
titles  indicating  the  subject-matter  of  the 
divisions  have  rarely  been  altered.  Clerical 
and  accidental  errors  have  remained  un- 
corrected, except  in  the  account  of  Pahiiers 
case.  In  the  edition  of  1862  there  was  a 
confusion  in  the  dates,  one  Monday  being 
described  as  both  the  i8th  and  the  20th 
November,  and  one  or  two  other  dates  being 
wrong.  Mr.  Will  has  made  corrections  by 
which  they  accord  with  one  another.  Unfor- 
tunately, the  corrections  are  not  themselves 
correct.  Mr.  Will  did  not  consult  the 
almanac  of  1855.  If  there  is  any  more 
trace  of  original  work  in  the  copying  (other 
than  a  few^  purely  verbal  alterations)  I  have 
failed  to  find  it  out. 

{a)  Desiring  to  be  accurate  I  have  marked  in  the  margins 
of  a  copy  of  the  edition  of  1862  the  pages  of  Mr.  Will's 
book,  where  the  text  of  my  father's  work  will  be  found, 
and  the  extent  of  the  respective  passages  appropriated. 
Only  365  lines  remain  unmarked. 


PREFACE.  XI 

I  have  only  to  add  that  should  Mr.  Will 
be  disposed  to  make  a  similar  use  of  the 
present  edition,  I  hope  he  will  remember 
that  this  preface  is  as  much  at  his  disposal 
as  any  other  part  of  the  book. 

I  am  greatly  indebted  to  Dr.  Dupre, 
F.R.S.,  so  well  knowm  in  connection  with 
medical  jurisprudence,  for  his  kindness  in 
revising  the  notice  at  pp.  144 — 146  of  the 
acknowledged  methods  of  detecting  blood- 
stains, and  of  the  extent  to  which  discrimina- 
tion between  different  kinds  of  blood  has 
hitherto  been  considered  possible.  A  note  at 
the  end  of  the  volume  by  my  son.  Dr.  Wills, 
contains  an  interesting  summary  of  the  latest 
discoveries  of  science  relating  to  the  examina- 
tion of  bloodstains  and  their  identification  with 
the  blood  of  different  animals — an  achieve- 
ment which  has  up  till  very  lately  been 
deemed  impossible.  The  methods  indicated 
have  certainly  not  as  yet  been  employed  in 
judicial  investigations  in  this  country,  and 
whether  they  are  really  to  be  depended  upon 
in  practice  remains  to  be  seen.  The  sub- 
ject is  a  very  important  one,  and  should  the 
processes  indicated  prove  to  be  reliable,  a 
source  of  difficulty  in  some  cases  of  murder 


j,jj  PREFACE. 

will  be  removed,  and  an  addition  made  to 
the  rcs(nirccs  of  science  which  will  at  times 
be  of  the  i^reatest  assistance,  both  in  the 
detection  of  crime  and  in  the  protection  of 
innocence. 

I     have    in     conclusion     to    express    my 
obligations  to  my  nephew,   Mr.  Wm.  Wills, 
of    the     Midland     Circuit,    from    whom     I 
received   the   greatest    assistance    in    arrang- 
ing  the   plan    of   the   new   edition    and    the 
selection    of  additional    matter,  and    to    Mr. 
Thornton  Lawes,  of  the  Western  Circuit,  who 
has   been    indefatigable   in   helping   me,    not 
merely   in    abstracting    cases    and    bringing 
references    to    the   statute   law  and    to   deci- 
sions   up    to     date,    but    also    in    securing 
uniformity  in'  methods  of  citation  and  in  the 
necessary  though  tedious  work  of  correcting 
the  proofs.     The  excellent  index  is  also  his. 
I  have  also  to  thank  Mr.  H.  O.  Buckle  for 
a  prolonged  and   careful  search  through  the 
files   of    The    Times    for   many  years    back. 
It  is  interesting  to  be  able  to  add  that  after 
carrying  his  rifle  as  a  member  of  the  Inns  of 
Court  Volunteer  Corps   through    the   earlier 
phases  of  the  South  African  war  to  Pretoria, 
he  has  been  appointed  to  a  judicial  office  at 


PREFACE.  Xlll 

Johannesburg,  where  I  am  sure  he  will  do 
good  service  to  the  Colony  in  administering 
justice  as  he  did  to  his  country  in  helping 
to  fight  her  battles. 

The  Lord  Chief  Justice  of  England  has 
kindly  revised  for  me  the  account  of  a  great 
trial  over  which  he  presided,  Rex  v.  Bennett, 
generally  known  as  the  Yarmouth  Mttrder 
case. 

ALFRED   WILLS. 

Royal  Courts  of  Justicb, 
July,  190a. 


EXTRACT  FROM  THE  PREFACE 

TO   THE   ORIGINAL   EDITION    OF    1838. 


It  has  not  always  been  practicable  to  support  the 
statement  of  cases  by  reference  to  books  of  recog- 
nized authority,  or  of  an  equal  degree  of  credit  ; 
but  discrimination  has  uniformly  been  exercised  in 
the  adoption  of  such  statements  :  and  they  have 
generally  been  verified  by  comparison  with  con- 
temporaneous and  independent  accounts.  A  like 
discretion  has  been  exercised  in  the  rejection  of 
some  generally  received  cases  of  circumstantial 
evidence,  the  authenticity  of  which  does  not  appear 
to  be  sufficiently  established. 


W.  W. 


Edgbaston,  near  BirminghaMj 
February,  1838 


THE    PRINCIPLES 

OF 

CIRCUMSTANTIAL   EVIDENCE. 


CHAPTER  I. 

EVIDENCE  IN  GENERAL, 


Section  r. 

THE    NATURE    OF    EVIDENCE. 

It  will  greatly  conduce  to  the  formation  of  clear 
and  correct  notions  on  the  subject  of  Circumstantial 
Evidence,  to  take  a  brief  introductory  view  of  the 
nature  of  evidence  in  general,  of  some  of  its  various 
kinds,  and  of  the  nature  of  the  assurance  which  each 
of  them  is  calculated  to  produce. 

The  great  object  of  all  intellectual  research  is  the 
discovery  of  truth,  which  is  either  objective  and 
ABSOLUTE,  in  which  sense  it  is  synonymous  with 
being  or  existence,  or  subjective  and  relative,  in 
which  acceptation  it  expresses  the  conformity  of  our 
ideas  and  mental  convictions  with  the  nature  and 
reality  of  events  and  things. 

C.E.  B 


2  EVIDENCE    IN    GENERAL. 

The  Junc.MKN  r  is  tliat  faculty  of  the  mind  wliich 
is  principally  concerned  in  the  investigation  and 
acquisition  of  truth  ;  and  its  exercise  is  tlie  intel- 
lectual act  by  which  one  thing  is  perceived  and 
affirmed  of  another,  or  the  reverse. 

Every  conclusion  of  the  judgment,  whatever  may 
be  its  subject,  is  the  result  of  evidence, — a  word 
which  (derived  from  two  Latin  words  signifying  to 
see  out,  to  trace  out  by  sight),  by  a  natural  transition 
is  applied  to  denote  the  means  by  which  any  alleged 
matter  of  fact,  the  truth  of  which  is  submitted  to 
investigation,  is  established  or  disproved. 

The  term  proof  is  often  confounded  with  evidence, 
and  applied  to  denote  the  viediJini  of  proof,  whereas 
in  strictness  it  marks  merely  the  effect  of  evidence. 
When  the  result  of  evidence  is  undoubting  assent  to 
the  certainty  of  the  event  or  proposition  which  is  the 
subject-matter  of  inquiry,  such  event  or  proposition 
is  said  to  be  proved;  and,  according  to  the  nature  of 
the  evidence  on  which  such  conclusion  is  grounded, 
it  is  either  knoivn  or  believed  to  be  true.  Our  judg- 
ments, then,  are  the  consequence  of  proof  in  its 
secondary  sense  ;  and  proof  is  the  final  result  of  that 
quantity  of  appropriate  evidence  which  produces 
assurance  and  certainty  ;  evidence  therefore  differs 
from  proof,  as  cause  from  effect. 

It  is  unnecessary,  in  relation  to  the  subject  of  this 
section,  to  mention  the  inferior  degrees  of  assurance, 
which  will  be  more  appropriately  noticed  in  another 
place. 


the  various  kinds  of  evidence.  3 

Section  2. 

the  various  kinds  of  evidence. 

Truth  is  either  abstract  and  necessary,  or  probable 
and  contingent ;  and  each  of  these  kinds  of  truth  is 
discoverable  by  appropriate,  but  necessarily  different 
kinds  of  evidence.  This  classification,  however,  is 
not  founded  in  any  essential  dift'erence  in  the  nature 
of  truths  themselves,  and  has  reference  merely  to 
our  imperfect  capacity  and  ability  of  perceiving" 
them  ;  since  to  an  Infinite  Intelligence  nothing 
which  is  the  object  of  knowledge  can  be  probable, 
and  everything  must  be  perceived  absolutely  and 
really  as  it  is  {a). 

In  many  instances  the  correspondence  of  our 
ideas  with  realities  is  perceived  instantaneously, 
and  without  any  conscious  intermediate  process  of 
reasoning,  in  which  cases  the  judgment  is  said  to  be 
INTUITIVE,  from  a  word  signifying  to  look  at  ;  and 
the  evidence  on  which  it  is  founded  is  also  denomi- 
nated intuitive  ;  though  it  would  perhaps  be  more 
correct  to  use  that  word  as  descriptive  of  the  nature 
of  the  mental  operation,  rather  than  of  the  kind  of 
evidence  on  which  it  rests. 

Intuition  is  the  foundation  of  demonstration, 
which  consists  of  a  series  of  steps  severally  re- 
solvable into  some  intuitive  truth.  Demonstration 
concerns  only  necessary  and  immutable  truth  ;  and 
its  first  principles  are  definitions,  which  exclude  all 

{a)  Butler's  Analogy,  Introduction. 

B   2 


4  EVIDENCE    IN    GENERAL. 

ambio^uities    of    language,    and    lead    to    infallibly 
certain  conclusions  (d). 

But  the  subjects  which  admit  of  the  certainty  of 
intuition  and  demonstration  are  comparatively  few. 
Innumerable  truths,  the  knowledge  of  which  is 
indispensable  to  happiness,  if  not  to  existence, 
depend  upon  evidence  of  a  totally  different  kind, 
and  admit  of  no  other  guide  than  our  own  observation 
and  experience,  or  the  testimony  of  our  fellow-men. 
Such  truths  involve  questions  of  fact  or  of  actual 
existence,  which,  as  they  are  not  of  a  necessary  nature, 
may  or  may  not  have  existed,  without  involving  any 
contradiction,  and  as  to  which  our  reasonings  and 
deductions  may  be  erroneous.  Such  evidence  is 
called  MORAL  evidence  ;  probably  because  its  prin- 
cipal application  is  to  suljects  directly  or  remotely 
connected  with  moral  conduct  and  relations. 

Of  the  various  kinds  of  moral  evidence,  that  of 
TESTIMONY  is  the  most  comprehensive  and  important 
in  its  relation  to  human  concerns  ;  so  extensive  in 
its  application,  that  to  enter  on  the  subject  of  testi- 
mony at  large,  would  be  to  treat  of  the  conduct  of 
the  understanding  in  relation  to  the  greater  portion 
of  human  affairs.  The  design  of  this  essay  is 
limited  to  the  consideration  of  some  of  the  principal 
rules  and  doctrines  peculiar  to  circumstantial  evi- 
dence as  applicable  to  criminal  jurisprudence, — one 
of  the  leading  heads  under  which  philosophical 
and     juridical     writers     consider     the     subject    of 

{b)  Stewart's  Elements  of  the  Philosophy  of  the  Human    Mind, 
vol.  ii.  ch.  ii.  s.  3. 


NATURE    OF    THE    ASSURANCE    PRODUCED.  5 

testimonial  evidence.  Nor  is  it  proposed  to  treat, 
except  cursorily  and  incidentally,  of  documentary 
circumstantial  evidence  ;  a  subject  which,  however 
interesting  in  itself,  is  applicable  principally  to  dis- 
cussions upon  the  genuineness  of  historical  and 
other  writings  ;  and  such  cases  of  this  description  as 
occasionally  happen  in  the  concerns  of  common  life, 
are  referable  to  general  principles,  which  equally 
apply  to  circumstantial  evidence  of  every  kind. 

Considering  how  many  of  our  most  momentous 
determinations  are  grounded  upon  circumstantial 
evidence,  and  how  important  it  is  that  they  should 
be  correctly  formed,  the  subject  is  one  of  deep 
interest  and  moment.  It  would  be  most  erroneous 
to  conclude  that,  because  it  is  illustrated  principally 
by  forensic  occurrences,  it  especially  concerns  the 
business  or  the  members  of  a  particular  profession. 
Such  events  are  amoncrst  the  most  interestino-  ocCur- 
rences  of  social  life  ;  the  subject  relates  to  an  intel- 
lectual process,  called  into  exercise  in  almost  every 
branch  of  human  speculation  and  research. 

Section  3. 

nature  of  the  assurance  produced  by  different 
kinds  of  evidence. 

In  investigations  of  every  kind  it  is  essential  that 
a  correct  estimate  be  made,  of  the  kind  and  degree 
of  assurance  of  which  the  subject  admits. 

Since  the  evidence  of  demonstration  relates  to 


6  EVIDENCE    IN    GENERAL. 

necessary  trulhs  (as  to  which  the  supposition  of  the 
contrar)'  involves  not  merely  what  is  not  and  cannot 
be  true,  but  what  is  also  absurd),  and  since  moral 
EVIDKNCK  is  the  basis  of  contingent  or  probable  truth 
merel)-,  it  follows  that  the  convictions  which  these 
various  kinds  of  evidence  are  calculated  to  produce 
must  be  of  very  different  natures.  In  the  former  case 
ABSOLUTE  CERTITUDE  is  the  result  ;  to  which  moral 
CERTAINTY,  the  highest  degree  of  assurance  of  which 
truths  of  the  latter  class  admit,  is  necessarily  inferior. 

Unlike  the  assent,  which  is  the  inevitable  result 
of  mathematical  reasoning,  belief  in  the  truth  of 
events  may  be  of  various  degrees,  from  moral  cer- 
tainty, the  highest,  to  that  of  mere  probability,  the 
lowest  ;  between  which  extremes  there  are  innumer- 
able degrees  and  shades  of  conviction,  which  the 
latency  of  mental  operations  and  the  unavoidable 
imperfections  of  language  render  it  impossible  to 
define  or  express.  In  subjects  of  moral  science,  the 
want  of  appropriate  words,  and  the  occasional  appli- 
cation of  the  same  word  to  denote  different  thinors, 
have  given  occasion  to  much  obscurity  and  confusion 
both  of  idea  and  expression  ;  of  which  a  remarkable 
exemplification  is  presented  in  the  words  probability 
and  certainty. 

The  general  meaning  of  the  word  probability  is 
likeness  or  similarity  to  some  other  truth,  event,  or 
thing  (r).      Sometimes  the  w^ord  probability  is  used 

(c)  Butler's  Analogy,  Introduction  ;  Locke's  Essay  concerning 
Human  Understanding,  b.  iv.  ch.  xv.  ;  Cic.  De  Inventione  Rhetorica, 
lib.  I.  c.  47. 


NATURE    OF    THE    ASSURANCE    PRODUCED.  7 

to  express  the  preponderance  of  the  evidence  or 
arguments,  in  favour  of  the  existence  of  a  particular 
event  or  proposition,  or  adverse  to  it ;  and  some- 
times as  assertive  of  the  abstract  and  intrinsic 
credibiHty  of  a  fact  or  event  (<'/). 

In  its  former  sense  the  word  probability  is  applied 
as  well  to  certain  mathematical  subjects,  as  to  ques- 
tions dependent  upon  moral  evidence,  and  expresses 
the  ratio  of  the  favourable  cases  to  all  the  possible 
cases  by  which  an  event  may  happen  or  fail  ;  and  it 
is  represented  by  a  fraction,  the  numerator  of  which 
is  the  sum  of  the  favourable  cases,  and  the  denomi- 
nator the  whole  number  of  possible  cases,  certainty 
being  represented  by  unity.  If  the  number  of 
chances  for  the  happening  of  the  event  be  o,  and 
the  event  be  consequently  impossible,  the  expres- 
sion for  that  chance  will  be  o  ;  and  so,  if  the 
number  of  chances  of  the  failure  of  the  event  be 
o,  and  the  event  be  therefore  certain,  the  expres- 
sion for  the  chance  of  failure  will  also  be  o. 
If  m  +  n  be  the  whole  number  of  cases,  vi  the 
favourable  and  ;/  the  unfavourable  ones,  the  proba- 
bility of  the  event  is  i?i  :  vi  +  n.  It  follows,  that  if 
there  be  an  equality  of  chances  for  the  happening  or 
the  failing  of  an  event,  the  fraction  expressive  of  the 
probability  is  ^,  the  mean  between  certainty  and 
impossibility  [c)  ;  and  probability  therefore  includes 
the  whole  rano^e  between  those  extremes. 

{(f)  The  latter  sense,  however,  scarcely  differs  in  character  from  the 
former  ;  inasmuch  as  its  real  meaning  is  that  the  event  or  fact  in 
question  is  consonant  with  other  accepted  facts. 

{e)  Kirwan's  Logic,  part  iii.  ch.  vii.  s.  I. 


8  EVIDENCE    IN    GENERAL. 

The  terms  certainty  and  probability  are  how- 
ever essentially  different  in  meaninrr  as  applied  to 
moral  evidence,  from  what  they  import  in  a  mathe- 
matical sense  ;  inasmuch  as  the  elements  of  moral 
certainty  and  moral  probability,  notwithstanding  the 
ingenious  arguments  which  have  been  urged  to  the 
contrary,  appear  to  be  incapable  of  numerical  expres- 
sion, and  because  it  is  not  possible  to  reduce  to  a 
number  all  the  chances  for  or  against  the  occurrence 
of  any  particular  event. 

The  expression  moral  probability,  though  liable 
to  objection  on  account  of  its  deficiency  in  precision, 
is  for  want  of  one  more  definite  and  appropriate,  of 
frequent  and  necessary  use  ;  nor  will  its  application 
lead  to  mistake,  if  it  be  remembered,  that  it  denotes 
only  the  preponderance  of  probability,  resulting  from 
the  comparison  and  estimate  of  moral  evidence,  and 
that  if  this  were  capable  of  being  expressed  with 
exactness,  it  would  lose  its  essential  characteristic 
and  possess  the  certainty  of  demonstration. 

The  preceding  strictures  equally  apply  to  the 
term  moral  certainty,  or  its  equivalent  moral  con- 
viction, which  must  be  understood,  not  as  importing 
deficiency  in  the  proof,  but  only  as  descriptive  of  the 
kind  ot  certainty  which  is  attainable  by  means  of 
moral  evidence  ;  and  it  is  that  full  and  complete 
assurance  which  induces  a  sound  mind  to  act  without 
doubt  upon  the  conclusions  to  which  it  naturally  and 
reasonably  leads  {f\ 

(/)  Stewart's  Elements  of  the   Philosophy  of  the   Human  Mind, 
vol.  ii.  ch.  ii.  s.  4  ;  Encyclopaedia  Brit.,  art.  Metaphysic.  part  i. 


NATURE    OF    THE    ASSURANCE    PRODUCED.  Q 

It  has  been  justly  and  powerfully  remarked  by  a 
noble  and  learned  writer,  that  "  the  degree  of  excel- 
lence and  of  strength  to  which  testimony  may  rise 
seems  almost  indefinite.  There  is  hardly  any 
cogency  which  it  is  not  capable  by  possible  supposi- 
tion of  attaining.  The  endless  multiplication  of 
witnesses — the  unbounded  variety  of  their  habits 
of  thinking,  their  prejudices,  their  interests — afford 
the  means  of  conceiving  the  force  of  their  testi- 
mony augmented  ad  infinitum^  because  these 
circumstances  afford  the  means  of  diminishing 
indefinitely  the  chances  of  their  being  all  mistaken, 
all  misled,  or  all  combining  to  deceive  us"  (^).  But 
if  evidence  leave  reasonable  ground  for  doubt,  the 
conclusion  cannot  be  morally  certain,  however 
great  may  be  the  preponderance  of  probability  in 
its  favour. 

Some  mathematical  writers  have  propounded 
numerical  fractions  for  expressing  moral  certainty; 
which,  as  might  have  been  expected,  have  been  of 
very  different  values.  But  the  nature  of  the  subject 
precludes  the  possibility  of  reducing  to  the  form  of 
arithmetical  notation  the  subtle,  shifting,  and  evan- 
escent elements  of  moral  assurance,  or  of  bringing 
to  quantitative  comparison,  things  so  inherently 
different  as  certainty  and  probability. 

Other  writers  have  given,  in  a  more  general 
manner,  mathematical  form  to  moral  reasonings  and 
judgments  ;  but  it  is  questionable  if  they  have  done 
so  with  any  useful  result,  however  they  may  have 

(^)  Lord  Brougham's  Discourse  on  Natural  Theology,  Note  V. 


10  EVIDENCE    IN    GENERAL. 

shown  their  own  ingenuity  {h).  Though  it  is  true 
that  some  very  important  deductions  from  the 
doctrine  of  chances  are  appHcable  to  events  de- 
pendent upon  the  duration  of  human  hfe,  such  as 
the  expectation  of  hfe,  the  law  of  mortahty,  the 
vahie  of  annuities  and  similar  contingencies,  and  a 
variety  of  other  matters  with  respect  to  which 
definite  statistical  information  is  obtainable,  yet  it 
is  obvious,  that  all  such  conclusions  depend  upon 
circumstances,  which,  notwithstanding  that  to  the 
unreflecting  observer  they  appear  casual,  uncertain, 
and  irreducible  to  principle,  unlike  moral  facts  and 
reasonings  in  general,  are  really  based  upon  and 
deducible  from  numerical  elements. 

A  learned  writer,  whose  writings,  in  despite  of  his 
eccentricities  of  matter  and  of  style,  have  exercised 
great  influence  in  awakening  the  spirit  of  judicial 
reform,  asks  (e),  "  Does  justice  require  less  precision 
than  chemistry  ?  "  The  truth  is,  that  the  precision 
attainable  in  the  one  case  is  of  a  nature  of  which 
the  other  does  not  admit.  It  would  be  absurd  to 
require  the  proof  of  an  historic  event,  by  the  same 
kind  of  evidence  and  reasoning  as  that  which 
establishes  the  equality  of  triangles  upon  equal 
bases  and  between  the  same  parallels,  or  that  the 
lahcs  rectmn  in  an  ellipse  is  a  third  proportional  to 
the  major  and  minor  axes. 

{h)  See  Kirwan's  Logic,  part  iii.  ch.  vii.  s.  21  ;  Whately's  Logic, 
b.  iv.  ch.  ii.  s.  i. 

(z)  Bentham's  Traite  des  Preuves  Judiciaires  (par  Dumont),  b.  i. 
ch.  xvii.  Bentham  originally  wrote, "  Has  not  Justice  its  use  as  well 
as  gas.-"'  See  reference  note  (1),  t'n/ra.  Mackintosh's  Dissertation 
on  the  Progress  of  Ethical  Philosophy,  290. 


NATURE    OF    THE    ASSURANCE    PRODUCED.  II 

This  conscript  father  of  legal  reforms  {k)  has 
himself  supplied  a  memorable  illustration  of  the 
futility  of  his  own  inquiry.  He  has  proposed  a 
scale  for  measurino-  the  degrees  of  belief,  with  a 
positive  and  a  negative  side,  each  divided  into  ten 
degrees,  respectively  affirming  and  denying  the 
same  fact,  zero  denoting  the  absence  of  belief; 
and  the  witness  is  to  be  asked  what  deeree  ex- 
presses  his  belief  most  correctly.  With  characteristic 
ardour,  the  venerable  author  gravely  argues  that 
this  instrument  could  be  employed  without  confu- 
sion, difficulty,  or  inconvenience  (/).  But  man  must 
become  wiser  and  better  before  the  mass  of  his 
species  can  be  entrusted  with  the  use  of  such  a 
moral  gauge,  from  which  the  unassuming  and  the 
wise  would  shrink,  while  it  would  be  eagerly  grasped 
by  the  conceited,  the  interested  and  the  rash. 

But  though  a  process  strictly  mathematical  cannot 
be  applied  to  estimate  the  effect  of  moral  evidence, 
a  proceeding  somewhat  analogous  is  observed  in  the 
examination  of  a  group  of  facts  adduced  as  grounds 
for  inferring  the  existence  of  some  other  fact. 
Althouoh  an  exact  value  cannot  be  assiorned  to  the 
testimonial  evidence  for  or  against  a  matter  of  dis- 
puted fact,  the  separate  testimony  of  each  of  the 
witnesses  has  yet  a  more  or  less  determinate  relative 
value,  depending  upon  considerations  which  it  would 
be  foreign  to  the  present  subject  to  enumerate.     On 

(/&)  I  Hoffman's  Course  of  Legal  Study,  364. 

(/)  Bentham's  Rationale  of  Judicial  Ev.,  b.  i.  ch.  vi.  s.  I,  and  see  in 
Kirwan's  Logic,  part  iii.  ch.  vii.  s.  21,  a  proposed  scale  of  testimonial 
probability. 


12  EVIDENCE    IN    GENERAL. 

one  side  of  the  equation  are  mentally  collected  all 
the  facts  and  circumstances  which  have  an  affirmative 
value  ;  and  on  the  other,  all  those  which  either  lead 
to  an  opposite  inference,  or  tend  to  diminish  the 
weight,  or  to  show  the  non-relevancy,  of  all  or  any 
of  the  circumstances  which  have  been  put  into  the 
opposite  scale.  The  value  of  each  separate  portion 
of  the  evidence  is  separately  estimated,  and  as  in 
algebraic  addition,  the  opposite  quantities,  positive 
and  negative,  are  united,  and  the  balance  of  proba- 
bilities is  what  remains  as  the  ground  of  human 
belief  and  judgment  [ni). 

But,  as  has  been  already  intimated,  there  is 
another  sense  in  which  the  word  probability  is 
often  used,  and  in  which  it  denotes  credibility  or 
INTERNAL  PROBABILITY,  and  cxprcsscs  our  judgment 
of  the  accordance  or  similarity  of  events  with 
which  we  become  acquainted,  through  the 
medium  of  testimony  with  facts  previously  known 
by    experience  (;^). 

The  results  of  experience  are,  expressly  or  im- 
pliedly, assumed  as  the  standard  of  credibility  in 
all  questions  dependent  upon  moral  evidence.  By 
means  of  the  senses  and  of  our  own  consciousness 
we  become  acquainted  with  external  nature,  and 
with   the   characteristics  and  properties  of  physical 

(i)i)  See  some  remarks  on  this  passage  in  a  learned  paper  "  On  the 
Measure  of  the  Force  of  Testimony  in  Cases  of  Legal  Evidence,"  by 
John  Tozer,  Esq.,  M.A.,  Transactions  of  the  Cambridge  Philosophical 
Society,  vol.  iii.  part  li.  (Cambridge,  1844),  and  36  Phil.  Mag. ,  3rd  ser, 
78. 

(/z)  Abercrombie  on  the  Intellectual  Powers,  part  ii.  s.  3. 


NATURE    OF    THE    ASSURANCE    PRODUCED.  I3 

things  and  moral  being-s,  which  are  then  made  the 
subjects  of  memory,  reflection,  and  other  intellectual 
operations  ;  and  thus  ultimately  the  mind  is  led  to 
the  recognition  of  the  principle  of  causality  and  other 
necessary  truths,  which  become  the  basis  and  standard 
of  comparison  in  similar  and  analogous  circumstances. 
The  groundwork  of  our  reasoning  is  an  instinctive 
and  inevitable  belief  in  the  truthfulness  and  legiti- 
macy of  our  own  faculties  and  in  the  permanence  of 
the  order  of  external  nature,  as  also  in  the  existence 
of  moral  causes,  which   operate  with  an   unvarying 
uniformity,  not  inferior  to  the   stability  of  physical 
laws  ;    though,   relatively  to  our  feeble  and  limited 
powers  of  observation  and  comprehension,  and  on 
account   of  the    latency,   subtlety,  and    fugitiveness 
of  mental  operations,  and  of  the  infinite  diversities 
of   individual    men,    there    is    apparently    more    of 
uncertainty  and  confusion  in  moral  than  in  material 
phenomena  (<?). 

Experience  comprehends  not  merely  the  facts  and 
deductions  of  personal  observation,  but  the  observa- 
tions of  mankind  at  large  of  every  age  and  country. 
It  would  be  absurd  to  disbelieve  and  reject  as  in- 
credible the  relations  of  events,  because  such  events 
have  not  occurred  within  the  ranofe  of  individual 
experience.  We  may  remember  the  unreasonable 
incredulity  of  the  King  of  Siam,  who  when  the  Dutch 
ambassador  told  him  that  in  his  country  the  water 
in  cold  weather  became  so  hard  that  men  walked 
upon  it,  and  that  it  would  even  bear  an  elephant, 

{0)  Hampden's  Lectures  on  Moral  Philosophy,  150;  Abercrombie's 
Philosophy  of  the  Moral  Feelings,  Prelim.  Obs.  s.  ii. 


14  EVIDENCE    IN    GENERAL. 

replied,  "  Hitherto  I  have  believed  the  strange  things 
you  have  told  me,  because  I  looked  upon  you  as  a 
sober,  fair  man,  but  now  I  am  sure  you  lie  "  (/ ). 

By  experience  facts  or  events  of  the  same  character 
are  referred  to  causes  of  the  same  kind  ;  by  analogy 
facts  and  events  similar  in  some,  but  not  in  all  of  their 
particulars  to  other  facts  and  occurrences,  are  con- 
cluded to  have  been  produced  by  a  similar  cause : 
so  that  analogy  vastly  exceeds  in  its  range  the  limits 
of  experience  in  its  widest  latitude,  though  their 
boundaries  may  sometimes  be  coincident  and  some- 
times indistinguishable.  It  has  been  profoundly 
remarked  that  "  in  whatever  manner  the  province  of 
experience,  strictly  so  called,  comes  to  be  thus  en- 
larged, it  is  perfectly  manifest  that,  without  some 
provision  for  this  purpose,  the  principles  of  our  con- 
stitution would  not  have  been  duly  adjusted  to  the 
scene  in  which  we  have  to  act.  Were  v/e  not  so 
formed  as  eagerly  to  seize  the  resembling  features 
of  different  things  and  different  events,  and  to  extend 
our  conclusions  from  the  individual  to  the  species, 
life  would  elapse  before  we  had  acquired  the  first 
rudiments  of  that  knowledge  which  is  essential  to 
our  animal  existence  "  [q).  Every  branch  of  know- 
ledge presents  instructive  examples  of  the  extent  to 
which  this  mode  of  reasoning  may  be  securely  carried. 
Newton,  from  having  observed  that  the  refractive 
forces  of  different  bodies  follow  the  ratio  of  their 

{p  )  Locke's  Essay  concerning  Human  Understanding,  b.  iv.  ch.  xv. 
s.  5. 

{g)  Stewart's  Elements  of  the  Philosophy  of  the  Human  Mind, 
vol.  ii.  ch.  ii.  s.  iv. 


NATURE    OF    THE    ASSURANCE    PRODUCED.  15 

densities,  was  led  to  predict  the  combustibility  of  the 
diamond  ages  before  the  mechanical  aids  of  science 
were  capable  of  verifying  his  prediction  ;  nor  is  the 
sagacity  of  the  conjecture  the  less  striking,  because 
this  correspondence  has  been  discovered  not  to  be 
without  exception  (r).  The  scientific  observer,  from 
the  inspection  of  shapeless  fragments,  which  have 
mouldered  under  the  suns  and  storms  of  ages,  con- 
structs a  model  of  the  original  in  its  primitive  mag- 
nificence and  symmetry.  A  profound  knowledge  of 
comparative  anatomy  enabled  the  immortal  Cuvier, 
from  a  single  fossil  bone,  to  describe  the  structure 
and  habits  of  many  of  the  extinct  animals  of  the 
antediluvian  world.  In  like  manner  an  enlightened 
knowledge  of  human  nature  often  enables  us,  on  the 
foundation  of  apparently  slight  circumstances,  to 
follow  the  tortuous  windings  of  crime,  and  ultimately 
to  discover  its  guilty  author,  as  infallibly  as  the 
hunter  is  conducted  by  the  track  to  his  game. 

The  following  pertinent  and  instructive  observa- 
tions may  advantageously  close  this  part  of  our  sub- 
ject, comprehending,  as  they  do,  everything  which 
can  be  usefully  adduced  in  illustration  of  the  necessity 
and  value  of  the  principle  of  analogy.  "  In  all 
reasonings  concerning  human  life  we  are  obliged  to 
depend  on  analogy,  if  it  were  only  from  that  uncer- 
tainty,  and    almost    suspension    of  judgment,    with 

(r)  The  perturbations  of  Uranus  led  astronomers,  by  a  process 
of  inference  from  the  known  interaction  of  ascertained  planets  upon 
one  another,  to  believe  in  the  existence  of  a  planet  outside  the  then 
known  solar  system  long  before  the  place  of  Neptune  was  calculated 
and  itself  discovered. 


l6  EVIDENCE    IN    GENERAL. 

which  we  must  hold  our  conclusions.  We  can 
seldom  obtain  that  number  of  instances  wliich  is 
requisite  here  to  establish  an  inference  indisputably. 
The  conduct  of  persons  or  of  parties  may  have  been 
attended  by  certain  antecedents  and  certain  results 
in  the  examples  before  us  ;  still  the  state  of  the  case 
may  be  owing,  not  so  much  to  that  conduct,  as  to 
other  causes,  which  are  shut  out  of  our  view,  when 
our  attention  is  fixed  on  the  particular  examples 
adduced  for  the  purpose  of  the  inference.  We  must 
thus  be  strictly  on  our  guard  against  transferring  to 
other  cases  anything  merely  contingent  and  peculiar 
to  the  instances  on  which  our  reasoning  is  founded. 
And  this  is  what  analogical  reasoning  requires  and 
enables  us  to  do.  If  rightly  pursued  it  is  employed 
at  once,  both  in  generalising  and  discriminating  ;  in 
the  acute  perception  at  once  of  points  of  agreement 
and  points  of  difference.  The  acme  of  the  philo- 
sophical power  is  displayed  in  the  perfect  co-operation 
of  these  two  opposite  proceedings.  We  must  study  to 
combine  in  such  a  way  as  not  to  merge  real  differ- 
ences ;  and  so  to  distinguish  as  not  to  divert  the  eye 
from  the  real  correspondence"  (s). 

It  may  be  objected,  that  the  minds  of  men  are  so 
differently  constituted,  and  so  much  influenced  by 
differences  of  experience  and  culture,  that  the  same 
evidence  may  produce  in  different  individuals  very 
different  degrees  of  belief;  that  one  man  may 
unhesitatingly  believe  an  alleged  fact,  upon  evidence 
which  will  not  in  any  degree  sway  the  mind  of 
another.      It  must  be  admitted  that  moral  certainty 

(s)  Hampden's  Lectures  on  Moral  Philosophy,  178. 


NATURE    OF    THE    ASSURANCE    PRODUCED.  I7 

has  not  one  fixed  and  unvarying  standard,  the  same 
for  every  individual  ;  that  scepticism  and  creduHty 
are  modifications  of  the  same  principle,  and  that  to 
a  certain  extent  this  objection  is  grounded  in  fact  ; 
but,  nevertheless,  the  psychological  considerations 
which  it  involves  have  but  little  alliance  with  the 
present  subject ;  the  argument,  if  pushed  to  its 
extreme,  would  go  to  introduce  universal  doubt  and 
distrust,  and  to  destroy  all  confidence  in  human 
judgment  founded  upon  moral  evidence.  It  is  as 
impossible  to  reduce  men's  minds  to  the  same 
standard,  as  it  is  to  bring  their  bodies  to  the  same 
dimensions  ;  but  in  the  one  case,  as  well  as  in  the 
other,  there  is  a  general  agreement  and  similarity, 
any  wide  departure  from  which  is  instantly  perceived 
to  be  eccentric  and  extravagant.  The  question  is, 
not  what  may  be  \\\^  possible  effect  of  evidence  upon 
minds  pectLliarly  constructed,  but  what  ought  to  be 
its  fair  result  with  men,  such  as  the  generality  of 
civilized  men  are. 

It  is  of  no  moment,  in  relation  to  criminal  juris- 
prudence, that  exact  expression  cannot  be  given  to 
the  inferior  deofrees  of  belief.  The  doctrine  of 
chances,  and  nice  calculations  of  probabilities,  cannot, 
except  in  a  few  cases,  and  then  only  in  a  very  general 
and  abstract  way,  be  applied  to  human  actions,  which 
are  essentially  unlike,  and  dependent  upon  peculiari- 
ties of  persons  and  circumstances  which  render  it 
impossible  to  assign  to  them  a  precise  value,  or  to 
compare  them  with  a  common  numeral  standard  ; 
nor  are  they  capable  in  any  degree,  or  under  any 
circumstances,   of   being  applied    to  actions   which 

C.E.  C 


l8  EVIDENCE    IN    GENERAL. 

infer  Ic^-al  responsibility.  In  the  common  affairs  of 
life,  men  are  frequently  obliged,  from  necessity  and 
duty,  to  act  upon  the  lowest  degree  of  belief ;  and, 
as  Locke  justly  observes,  "  He  that  will  not  stir,  till 
he  infallibly  knows  the  business  he  goes  about  will 
succeed,  will  have  little  else  to  do  but  to  sit  still  and 
perish  "  (/).  But  in  such  cases  our  judgments  com- 
monly concern  ourselves,  and  our  own  motives, 
duties,  and  interests  ;  while  in  the  administration  of 
penal  justice,  the  magistrate  is  called  upon  to  apply 
to  the  conduct  of  others,  a  rule  of  action  applicable 
to  a  given  state  of  facts,  where  external  and  some- 
times ambieuous  indicia  alone  constitute  the  grounds 
of  judgment.  In  the  application  of  every  such  rule, 
the  certainty  of  the  facts  is  presupposed,  and  is 
its  only  foundation  and  vindication  ;  and  upon  any 
lower  degree  of  assurance,  its  application  would  be 
arbitrary  and  indefensible. 

{jt)  Essay  concerning  Human  Understanding,  b.  iv.  ch.  xiv.  s.  I. 


AMERICAN    NOTES. 

[Note  to  Chapter  I.] 

"  Evidence  "  Defined. 

"Evidence"  means  — "  i.  Statements  made  by  witnesses  in 
court  under  a  legal  sanction,  in  relation  to  matters  of  fact  under 
inquiry ;  such  statements  are  called  evidence.  2.  Documents 
produced  for  the  inspection  of  the  Court  or  judge  ;  such  docu- 
ments are  called  documentary  evidence."  Stephen's  Dig.  Evid. 
Art.  I.  This  author  wholly  ignores  the  distinction  between  direct 
and  circumstantial  evidence,  treating  the  subject  mainly  from  the 
standpoint  of  relevancy  alone. 

Mr.  Thayer  defines  the  term  "  evidence  "  as  "  any  matter  of  fact 
which  is  furnished  to  a  legal  tribunal,"  regarding  the  definition  of 
Stephen  as  too  narrow  in  that  it  excludes  matters  of  fact  demon- 
strated to  the  senses  of  the  judge  (Cases  on  Evidence,  p.  2).  An 
instance  of  evidence  not  included  in  the  definition  of  Stephen,  but 
embraced  by  Mr.  Thayer's  definition,  occurs  in  Brown  v.  Foster, 
113  Mass.  137,  where,  in  a  controversy  over  the  fit  of  a  coat,  the 
coat  is  put  on. 

"  The  word  '  evidence,'  in  legal  acceptation,  includes  all  means 
by  which  any  alleged  matter  of  fact,  the  truth  of  which  is  sub- 
mitted to  investigation,  is  established  or  disproved."  Greenleaf 
on  Evid.   §   i. 

Testimony. 

The  term  "  testimony  "  refers  to  evidence  given  by  witnesses  and 
excludes  documentary  evidence.     Dibble  v.  Dimmick,  143  N.  Y. 

549'  554- 

Positive  and  Negative  Evidence. 

The  evidence  of  one  who  did  not  hear  a  sound  for  which 
he  was  listening  is  positive.  L.  S.  &  M.  S.  R.  R.  Co.  v.  Schade, 
15  Ohio  Circ.  Ct.  424,  57  Ohio  St.  650 ;  C,  C,  C.  &  St.  L.  Ry.  v. 


l8^  AMERICAN   NOTES. 

Richardson,  lo  Circ.  Dec.  326,  19  Ohio  Circ.  Ct.  3S5  (locomotive 
bell  or  whistle). 

Positive  evidence  is  generally  superior  to  ncj2;ative.  I5oyd  v. 
Sell,  Tappan  (Ohio),  43  ;  Toledo  Consol.  St.  Ry.  v.  Roehner, 
6  Circ.  Dec.  (Ohio)  706,  9  Ohio  Circ.  Ct.  702,  57  Ohio  St. 
667. 

On  the  question  of  notoriety,  if  witnesses  have  equal  oppor- 
tunities for  knowing  the  facts  negative  evidence  is  entitled  to  full 
weight.     Mc.Arthur  z/.  Phoebus,  2  Ohio,  415,  426. 

Positive  evidence  of  a  fact  is  entitled  to  greater  weight  than 
negative  evidence  against  it.  Urias  v.  Penn.  R.  Co.,  152  Pa.  326; 
Floyd  V.  Phila.  &  R.  R.  Co.,  162  Pa.  29. 

Relei'ancy. 

"Facts  not  otlierwise  relevant  are  relevant — (i)  If  they  are 
inconsistent  with  any  fact  in  issue  or  relevant  fact ;  (2)  If  by 
themselves,  or  in  connection  with  otlier  facts,  they  make  the  ex- 
istence or  non-existence  of  any  fact  in  issue,  or  relevant  fact,  highly 
probable  or  improbable."  Stephen's  Dig.  Evid.,  Appendix,  Note  i. 
This  rule  would  justify  the  admission  of  circimistantial  evidence 
of  facts  from  which  the  facts  in  issue  are  to  be  inferred. 

In  earlier  editions  Stephen  had  defined  relevant  facts  as  follows: 
'•'  Facts,  whether  in  issue  or  not,  are  relevant  to  each  other  when 
one  is,  or  probably  may  have  been  —  the  cause  of  the  other;  the 
effect  of  the  other  ;  an  effect  of  the  same  cause  ;  a  cause  of  the 
same  effect ;  or  when  the  one  shows  that  the  other  must  or  cannot 
have  occurred,  or  probably  does  or  did  exist,  or  not ;  or  that 
any  other  fact  does  or  did  exist,  or  not,  which  in  the  common 
course  of  events  would  either  have  caused  or  have  been  caused 
by  the  other." 

A  fact  may  be  admissible  in  connection  with  other  facts  forming 
a  chain,  even  though  standing  alone  it  would  afford  no  reasonable 
ground  for  inference. 

"  If  it  would  be  relevant  when  taken  in  connection  with  other 
facts,  it  ought  to  be  proposed  in  connection  with  those  facts,  and 
an  offer  to  follow  the  evidence  proposed  with  proof  of  those  facts 
at  the  proper  times.  Dislocated  circumstances  may  doubtless  be 
given  in  evidence  ;  particularly  if  there  be  no  objection  to  the  order 
of  time;  but  the  proposal  of  the  evidence  must  contain  in  itself,  by 


AMERICAN   NOTES.  iS  c 

reference  to  something  that  has  preceded  it,  or  that  is  to  follow 
information  of  the  manner  in  which  the  evidence  is  to  be  legiti- 
mately operative."     Weidler  v.  Bank,  ii  S.  &  R.  (Pa.)  139. 

"  Whatever  is  not  of  a  nature  to  beget  mental  conviction  upon 
the  point  under  inquiry  is  irrelevant  evidence  and  should  not  be 
admitted  ;  whatever  is  of  that  nature  should  be  admitted.  And  of 
this  moral  quality  of  proofs  the  presiding  judge  is  the  arbiter;  he 
admits  and  rejects,  under  our  sujjervision,  according  to  his  esti- 
mate (not  of  the  effect  of  the  evidence,  for  that  is  for  the  jury),  but 
according  to  his  estimate  of  the  fitness  of  the  evidence  to  conduct 
human  reason  to  a  sound  conclusion  on  the  point  in  question."' 
Stauffer  v.  Young,  39   Pa.   St.  460. 

"Conclusive  Proof  Defined. 

"Conclusive  Proof"  means  "  evidence  upon  the  production  of 
which  the  judge  is  bound  by  law  to  regard  some  facts  as  proved, 
and  to  exclude  evidence  intended  to  disprove  it."  Stephen's  Dig. 
Evid.  Art.  i. 

All  Facts  prima  facie  Admissible. 

"Unless  excluded  by  "some  rule  or  principle  of  law,  all  that  is 
logically  probative  is  admissible."  Thayer's  Preliminary  Treatise 
on  Evidence,  p.  265. 

Nature  of  the  Assurance  Produced  by  Different  Kinds  of 
Evidence. 

Eiiidence  need  not  be  conclusive.  —  One  may  testify  as  to  spots 
of  blood  on  the  clothes  of  a  prisoner  accused  of  murder  with- 
out calling  for  a  chemical  analysis.  People  v.  Fernandez,  35 
N.  Y.  49- 

Testimony  is  not  to  be  ruled  out  as  irrelevant  because  it  does 
not  at  once  establish  the  whole  issue.  If  not  followed  up  by  con- 
necting proof,  the  adverse  party  niay  request  the  Court  to  direct 
the  jury  to  disregard  it.  Murphy  v.  Boker,  3  Rob.  (N.  Y.)  i, 
28  How.  Pr,  251  ;  Polhamus  7/.  Moser,  7  Rob.  (N.  Y.)  489. 

Inferences  may  be  drawn  by  the  jury  if  they  be  reasonable  and 
probable  ;  they  need  not  be  necessary  inferences.  Gannon  v. 
People,  127  111.  507,  II  Am.  St.  Rep.  147. 


l8^  AMERICAN  NOTES. 

Test  of  Admissibilify  of  Circumstances. 

"  It  is  sometimes  difficult  to  mark  with  precision  the  line  which 
separates  the  limits  of  just  and  reasonable  inference  from  those  of 
mere  conjecture  or  surmise.  This  arises  necessarily  from  the  na- 
ture of  indirect  evidence.  Being  founded  on  the  observation  and 
experience  of  the  mutual  connection  between  facts  and  circum- 
stances, the  question  of  its  competency  is  easy  or  difficult  of  solu- 
tion according  as  such  supposed  connection  is  constant  or  more 
or  less  regular  and  frequent.  But  as  a  safe  practical  rule  it  may  be 
laid  down  that  in  no  case  is  evidence  to  be  excluded  of  any  fact 
or  circumstances,  connected  with  the  principal  transaction,  from 
which  an  inference  to  the  truth  of  a  disputed  fact  can  reasonably 
be  made."     Com.  7'.  Jeffries,  7  Allen  (Mass.),  548. 

"  But  yet  the  competency  of  a  collateral  fact  to  be  used  as  the 
basis  of  legitimate  argument  is  not  to  be  determined  by  the  con- 
clusiveness of  the  inferences  it  may  afford  in  reference  to  the 
litigated  fact.  It  is  enough  if  these  may  tend,  even  in  a  slight 
degree,  to  elucidate  the  inquiry,  or  to  assist,  though  remotely,  to  a 
determination  probably  founded  in  truth.  Indeed,  to  require  a 
necessary  relation  between  the  fact  known  and  the  fact  sought 
would  sweep  away  many  sources  of  testimony  to  which  men  daily 
recur  in  the  ordinary  business  of  life  ;  and  that  cannot  be  rejected 
by  a  judicial  tribunal  without  hazard  of  shutting  out  the  light." 
Stevenson  v.  Stewart,  1 1  Pa.  308. 

The  Assurance  Produced  by  Circumstantial  Evidence  is  in  its 
Nature  Sufficient. 

If  absolute  certainty  were  required  it  would  be  necessary  to 
exclude  testimonial  evidence  and  even  open  confessions,  as  well 
as  circumstantial  evidence.  As  said  by  Justice  Story  in  U.  S.  v. 
Gibert,  2  Sumner  (U.  S.),  19,  28:  "It  is  not  even  certain  that 
criminals  who,  in  capital  cases,  plead  guilty,  and,  by  confession  of 
their  guilt  in  open  court,  submit  to  the  sentence  of  the  law,  are 
always  guilty  of  the  offence.  Cases  have  occurred  in  which  men 
have  been  accused  and  tried,  and  convicted  of  murder,  upon  their 
own  solemn  confession  in  a  court  of  justice  ;  when  it  has  been 
afterwards  ascertained  that  the  party  could  not  have  been  guilty  ; 
for  the  person  supposed  to  be  murdered  was  found  to  be  still  living 


AMERICAN   NOTES.  iS  e 

or  lost  his  life  at  another  place,  and  at  a  different  period.  And  yet 
it  never  has  been  supposed  that  a  solemn  confession  in  open  court 
was  not  a  just  ground  to  believe  the  guilt  of  the  party  accused. 
But  to  what  conclusion  does  this  tend?  Admitting  the  truth  of 
such  cases,  are  we  then  to  abandon  all  confidence  in  circum- 
stantial evidence,  and  in  the  testimony  of  witnesses?  Are  we 
to  declare  that  no  human  testimony  to  circumstances  or  to 
facts  is  worthy  of  behef,  or  can  furnish  a  just  foundation  for  a 
conviction?  That  would  be  to  subvert  the  whole  foundations  of 
the  administration  of  public  justice." 

That  it  is  possible  by  means  of  circumstantial  evidence  to  prove 
the  guilt  of  the  accused  beyond  a  reasonable  doubt,  as  that  term  is 
understood  in  the  law,  is  indicated  by  Chief  Justice  Shaw  in  Com. 
■V.  Webster,  5  Cush.  (Mass.)  259,  319.  "  It  is  essential,  therefore, 
that  the  circumstances  taken  as  a  whole,  and  giving  them  their 
reasonable  and  just  weight,  and  no  more,  should,  to  a  moral  cer- 
tainty, exclude  every  other  hypothesis.  For  it  is  not  sufficient  to 
establish  a  probability,  though  a  strong  one  arising  from  the  doc- 
trine of  chances,  that  the  fact  charged  is  more  likely  to  be  true 
than  the  contrary  ;  but  the  evidence  must  establish  the  truth  of 
the  fact  to  a  reasonable  and  moral  certainty  ;  a  certainty  that  con- 
vinces and  directs  the  understanding,  and  satisfies  the  reason  and 
judgment,  of  those  who  are  bound  to  act  conscientiously  upon 
it.  This  we  take  to  be  proof  beyond  a  reasonable  doubt  ;  because 
if  the  law,  which  mostly  depends  upon  considerations  of  a  moral 
nature,  should  go  further  than  this  and  require  absolute  certainty, 
it  would  exclude  circumstantial  evidence  altogether."  And  would 
exclude,  it  might  be  truthfully  added,  testimonial  evidence  also. 

In  Gibson  v.  Hunter,  2  H.  Bl.  298,  the  argument  of  counsel  for 
the  admission  of  certain  evidence,  which  the  Court  admitted,  was 
as  follows  :  "  The  defendant  in  error  humbly  submits  that  it  is  com- 
petent to  a  jury  to  find  matters  of  fact  without  direct  or  positive 
testimony  of  those  facts  and  upon  circumstantial  evidence  only, 
although  the  inference  or  conclusion  to  be  drawn  from  the  circum- 
stances proved  be  not  absolutely  certain  or  necessary ;  that  it  is 
sufficient  if  the  circumstantial  evidence  be  such  as  may  afford  a 
fair  and  reasonable  presumption  of  the  facts  to  be  tried  ;  and  if 
the  evidence  has  that  tendency  it  ought  to  be  received  and  left  to 
the  consideration  of  the  jury,  to  whom  alone  it  belongs  to  determine 


1 8/  AMERICAN   NOTES. 

upon  the  precise  force  and  effect  of  the  circumstances  proved,  and 
whether  they  are  sufficiently  satisfactory  and  convincing  to  warrant 
them  in  finding  the  fact  in  issue." 

Motive   Unnecessary. 

Circumstantial  evidence  may  be  sufficient  upon  which  to  con- 
vict defendant  of  assault  with  intent  to  kill  even  though  no  motive 
whatever  be  shown.     Sterling  v.  State,  89  Ga.  807. 

Moral  Evidence. 

Moral  evidence  is  evidence  sufficient  to  induce  a  belief  upon 
which  men  would  act  in  their  own  affairs.  Babcock  v.  Fitchburg 
R.  R.  Co.,  140  N.  Y.  308,  311. 

"  None  but  mathematical  truth  is  susceptible  of  that  high  degree 
of  evidence  called  demonstration,  which  excludes  all  possibility  of 
error,  and  which,  therefore,  may  reasonably  be  required  in  support 
of  every  mathematical  deduction.  Matters  of  fact  are  proved  by 
moral  evidence  alone  ;  by  which  is  meant  not  only  that  kind  of 
evidence  which  is  employed  on  subjects  connected  with  moral 
conduct,  but  all  the  evidence  which  is  not  obtained  either  from 
intuition  or  from  demonstration.  In  the  ordinary  affairs  of  life 
we  do  not  require  demonstrative  evidence,  because  it  is  not  con- 
sistent with  the  nature  of  the  subject,  and  to  insist  upon  it  would 
be  unreasonable  and  absurd.  The  most  that  can  be  afifirmed  of 
such  things  is,  that  there  is  no  reasonable  doubt  concerning  them. 
The  true  question,  therefore,  in  trials  of  fact,  is  not  whether  it  is 
possible  that  the  testimony  may  be  false,  but  whether  there  is 
sufficient  probability  of  its  truth  ;  that  is,  whether  the  facts  are 
shown  by  competent  and  satisfactory  evidence.  Things  estab- 
lished by  competent  and  satisfactory  evidence  are  said  to  be 
proved."     Greenleaf  on  Evid.  §  i. 

Experience  the  Basis. 

"The  logic  upon  which  circumstantial  evidence  is  based  is 
this:  We  know  from  our  experience  that  certain  things  are  usual 
concomitants  of  each  other.  In  seeking  to  establish  the  existence 
of  one,  where  the  direct  proof  is  deficient  or  uncertain,  we  prove 
the  certaui  existence  of  the  co-relative  fact,  and   thus  establish, 


AMERICAN  NOTES.  l8^ 

with  more  or  less  certainty,  according  to  the  nature  of  the  case, 
the  reahty  of  the  principal  fact."  People  v.  Kennedy,  32  N.  Y. 
141,  145. 

Doubts  as  to  Reliability  of  Experience. 

In  I  Taylor  on  Evidence,  §  66,  it  is  said,  "Throw  a  case  of 
circumstantial  evidence  into  the  form  of  a  syllogism,  and  it  will 
be  found  that  the  major  premise  rests  solely  on  the  erring  expe- 
rience of  the  tribunal  to  whom  it  is  presented." 

And  Lord  Bacon  maintains  that  there  is  a  natural  tendency 
in  the  human  mind  to  suppose  a  greater  order  and  conformity  in 
things  than  actually  exist.     Novum  Organum,  aphor.  45. 

Order  of  Introducing  Evidence. 

If  a  circumstance  tends  to  make  a  material  fact  more  or  less 
probable,  it  is  admissible,  and  the  order  in  which  such  circum- 
stances may  be  introduced  is  largely  in  the  discretion  of  the  party 
introducing  them.     Johnson  v.  Com.  115  Pa.  St.  369. 

Weight  of  Evidence  Required. 

It  is  sometimes  said  that  circumstantial  evidence  must  be  equal 
in  weight  to  the  testimony  of  one  credible  witness,  but  there  is  no 
such  rule  in  the  common  law.     State  v.  Norwood,  74  N.  C.  247. 

But  by  statute  it  is  sometimes  provided  that  '•  no  person  shall 
be  convicted  of  any  crime  punishable  by  death  without  the  testi- 
mony of  at  least  two  witnesses,  or  that  which  is  equivalent  thereto." 
See  State  v.  Kelly,  77  Conn.  266,  274. 

Circumstantial  Evidence  is  Ad?nissible  to  Prove  Relevafit  Facts 
even  though  they  be  not  Facts  in  Issue. 

Courts  have  very  frequently  said  that  where  \.\\t  factum  proban- 
dum  is  to  be  established  by  circumstantial  evidence,  those  circum- 
stances from  which  the  inference  is  to  be  made  must  be  proved  by 
direct  evidence.  See  Globe  Ace.  Ins.  Co.  v.  Gerisch,  163  111. 
625  ;  Binns  v.  State,  66  Ind.  428;  U.  S.  v.  Ross,  92  U.  S.  281, 
3  Encyc.  Evidence,  70.  And  see  for  criticism  of  the  doctrine, 
Wigmore  on  Evidence,  §  41. 

But  the  statement  cannot  be  strictly  true.  The  fact  that  the 
defendant  made  a  plan  to  commit  the  crime  charged,  is  every- 


1 8/;  AMERICAN  NOTES. 

where  adniissil)le  in  evidence  against  him,  and  where  tlie  parties 
have  not  themselves  confessed  to  having  such  a  jjlan,  the  fact 
must  necessarily  be  proved  by  the  surrounding  circumstances. 
The  facts  that  defendant  bought  a  gun  and  that  he  thereupon  lay 
in  wait  for  another  are  facts  from  which  may  be  inferred  his  plan 
to  commit  a  crime,  and  his  having  such  a  plan  is  a  fact  from  which 
his  guilt  may  be  inferred. 

This  is  an  inference  from  an  inference,  and  yet  courts  univer- 
sally admit  such  evidence. 

It  is  sometimes  said  that  the  facts  from  which  an  inference  is 
to  be  drawn  must  not  themselves  be  uncertain,  but  must  be  proved 
by  direct  evidence.  But  certainty  and  proof  by  direct  evidence 
are  two  different  things.  It  is  true  that  the  jury  ought  not  to  be 
allowed  to  draw  an  inference  from  facts  that  are  too  uncertain  to 
be  a  reasonable  basis  for  any  inference,  but  this  is  just  as  likely 
to  be  the  case  where  those  facts  are  sought  to  be  proved  by  direct 
evidence  as  by  indirect. 

The  rule  may,  however,  be  given  a  meaning  that  is  very  ob- 
viously true.  We  cannot  draw  an  inference  until  we  have  some- 
thing from  which  to  infer,  and  although  we  can  draw  an  inference 
from  the  fact  which  is  itself  inferred,  the  fact  that  is  tlie  starting 
point  of  our  chain  of  inferences  must  be  proved  by  other  evidence 
than  circumstantial. 

Furthermore,  courts  are  justified  in  excluding  evidence  of  facts 
on  the  ground  tliat  they  are  too  remote  and  require  too  many 
inferences  before  arriving  at  \.\\e  fadtim  proband um.  See  State  v. 
Kelly,  77  Conn.  266. 

That  the  circumstances  from  which  the  guilt  of  the  defendant 
is  to  be  inferred  may  themselves  be  established  by  circumstantial 
evidence,  is  held  in  State  v.  Smith,  102  Iowa,  656,  663,  where  in 
order  to  prove  the  defendant  guilty  of  poisoning  her  husband  an 
effort  was  made  to  show  that  she  previously  shot  him.  The 
Court  says  :  "  'i'he  appellant  does  not  deny,  but  admits,  that  acts, 
conduct,  threats,  declarations,  and  statements  of  a  person  accused 
of  crime,  which  occurred  before  it  was  committed,  are  admissible 
to  show  a  motive  or  intent,  but  urges  that,  to  be  competent,  the 
evidence  must  be  direct,  and  not  circumstantial.  We  are  not 
aware  that  the  authorities  make  the  distinction  urged,  and  do  not 
think  there  is  any  sufficient  ground  upon  which  to  base  it.     If  a 


AMERICAN   NOTES.  l8/ 

prior  act  or  declaration  may  be  proved  as  tending  to  show  the 
guilt  of  a  person  accused  of  crime,  we  are  of  the  opinion  that 
it  may  be  shown  by  any  evidence  competent  to  prove  the  act  if 
it  were  directly  in  issue,  whether  such  evidence  be  positive  and 
direct,  or  circumstantial  only."  The  illustration  given  in  Brad- 
shavv  V.  State,  17  Neb.  147,  to  show  that  where  there  are  many 
circumstances  from  which  an  inference  may  be  drawn,  it  may  be 
sufficiently  established  even  though  some  of  those  circumstances 
be  disbelieved,  also  illustrates  that  guilt  may  be  inferred  from 
facts  themselves  inferred.  The  Court  says,  supposing  a  case  of 
wife  murder :  "  All  the  circumstances  of  the  case  point  with  almost 
absolute  certainty  to  his  guilt.  The  jury  are  satisfied  of  it  beyond 
a  reasonable  doubt.  He  is  proved  to  be  devoid  of  affection  for 
her,  has  been  seen  to  cruelly  maltreat  her.  His  conduct  toward 
another  woman  establishes  the  fact  that  she  has  supplanted  his 
wife  in  his  affection.  The  poison  has  been  found  in  the  body  of 
the  deceased  in  a  sufficient  quantity  to  produce  death.  He  is 
shown  to  have  recently  purchased  the  same  kind  of  poison  for  the 
alleged  purpose  of  destroying  a  family  dog  which  has  been  perma- 
nently injured,  but  which  he  wishes  to  kill  without  pain.  It  is 
shown  he  had  no  dog,  and  none  had  been  injured.  He  had  but 
recently  caused  the  life  of  his  wife  to  be  heavily  insured.  He  had 
been  heard  to  make  threats  and  insinuations  which,  in  the  light  of 
subsequent  events,  show  that  he  intended  and  confidently  expected 
her  death  at  an  early  day.  A  witness  is  called  for  the  prosecution 
who  testifies  that  at  a  particular  time  he  saw  the  accused  in  the 
company  of  the  other  woman  under  circumstances  of  very  ques- 
tionable propriety,  and  which,  if  believed,  would  establish  illicit 
intercourse  between  them.  This  last  fact  is  '  relied '  upon  as  a 
'link  in  the  chain  of  circumstances  '  to  establish  the  fact  of  his 
guilt  of  the  crime  charged.  The  jury  are  fully  satisfied  of  his 
guilt,  but  from  the  conduct  or  demeanor  of  the  witness,  or  from 
some  other  cause,  do  not  believe  the  story  of  the  illicit  intercourse. 
Must  they  therefore  find  the  accused  not  guilty?     Clearly  not." 

Here  maltreatment  argues  lack  of  affection,  lack  of  affection 
argues  a  desire  to  be  rid  of  the  wife,  the  desire  to  be  rid  of  her 
argues  that  he  killed  her.  Again,  his  false  purpose  in  buying  the 
poison  argues  the  existence  of  another  purpose  which  he  desired 
to  conceal,  hence  it  must  have  been  an  evil  purpose,  it  may  have 


iSy  AMERICAN  NOTES. 

been  a  purpose  to  kill  his  wife,  and  hence  if  he  may  have  had  the 
purpose  he  may  have  killed  her.  Again  from  the  fact  of  illicit 
intercourse  with  another  it  cannot  be  inferred  directly  that  he  killed 
his  wife,  but  it  may  be  the  basis  of  a  chain  of  inference  to  this  end. 

In  State  z'.  Kelly,  77  Conn.  266,  271,  it  is  said,  in  excluding 
certain  testimony  that  the  deceased  had  been  despondent  some 
months  before  her  death  and  exhibited  no  desire  to  live  :  "  The 
Court  was  plainly  justified  in  excluding  this  testimony  as  too  remote. 
If  it  could  serve  any  useful  purpose  it  would  be  in  creating  an  infer- 
ence of  the  harboring  of  a  purpose  to  take  life  to  use  in  drawing 
another  inference  that  she  did  so.  Evidence  for  the  purpose  of 
creating  an  inference  of  the  fact  upon  which  to  base  an  inference 
of  another  fact  is  generally  inadmissible.      It  is  too  remote." 

But  the  Court  itself  in  this  opinion  intimates  that  such  evidence 
is  admissible  when  nearer  in  point  of  time,  though  in  such  case 
the  double  inference  would  be  just  as  necessary.  See  Com.  v. 
Trefethen,  157  Mass.  180. 

Circumstantial  evidence  is  admissible  if  it  tends  to  establish  any 
material  fact,  even  though  it  does  not  tend  to  establish  the  guilt 
of  the  defendant.     State  v.  Reno,  67  Iowa,  587. 

Where  a  motive  on  the  part  of  the  defendant  may  be  inferred 
from  his  acts  or  statements  before  the  event,  such  acts  or  state- 
ments may  be  proved  by  circumstantial  evidence.  State  v.  Smith, 
102  Iowa,  656. 

Evide7ice  too   Remote. 

That  evidence  otherwise  relevant  may  be  excluded  because  too 
remote  is  laid  down  as  follows  in  Art.  2,  Stephen's  Dig.  Evid.  : 
"  Provided  that  the  judge  may  exclude  evidence  of  facts  which, 
though  relevant  or  deemed  to  be  relevant  to  the  issue,  appear  to 
him  too  remote  to  be  material  under  all  the  circumstances  of  the 
case." 

And  commenting  upon  this  in  State  v.  Kelly,  77  Conn.  266, 
269,  the  Court  says,  "This  general  principle  finds  its  frequent  ex- 
pression in  such  statements  as  that  matter  likely  to  mislead  the 
jury,  or  to  be  misused  by  it,  or  to  unnecessarily  coniphcate  a  case, 
or  of  slight,  remote,  or  conjectural  significance,  ought  not  to  be 
admitted." 

In  Thayer's  Cases  on  Evidence,  229,  it  is  said  :  "  Remoteness  as 


AMERICAN   NOTES.  iS  k 

applied  to  evidence  is  a  term  which  has  regard  for  other  factors 
than  mere  lapse  of  time,  even  where  it  is  a  factor,  as  it  often  is  not. 
The  essence  of  remoteness  is  such  a  want  of  open  and  visible  con- 
nection between  the  evidentiary  and  principal  facts  that,  all  things 
considered,  the  former  is  not  worthy  or  safe  to  be  admitted  in 
proof  of  the  latter.  .  .  .  Generally  speaking,  the  question  of  re- 
moteness, as  justifying  the  exclusion  of  evidence,  must  depend 
upon  all  the  considerations,  including  time,  the  character  of  the 
evidence,  and  all  the  surrounding  circumstances  which  in  the 
opinion  of  the  Court  ought  to  have  a  bearing  upon  its  worthiness 
to  be  brought  into  the  consideration  and  determination  of  the  matter 
in  contention." 

Rules  of  law  ought  not  to  be  so  artificial  as  to  sh'it  out  proof  of 
any  circumstance,  even  though  it  be  remote,  which  may  assist  in 
determining  guilt  or  innocence.     Johnson  v.  State,  14  Ga.  55. 


CHAPTER    II. 

CIRCUMSTANTIAL  EVIDENCE. 


Section  i. 

essential  characteristics  of  circumstantial 
evidence. 

The  epithets  direct  and  indirect  or  circumstan- 
tial, as  applied  to  testimonial  evidence,  have  been 
sanctioned  by  such  long  and  general  use,  that  it  might 
appear  presumptuous  to  question  their  accuracy, 
as  it  would  perhaps  be  impracticable  to  substitute 
others  more  appropriate.  But  assuredly  these  terms 
have  frequently  been  very  indiscriminately  applied, 
and  the  misuse  of  them  has  occasionally  been  the 
cause  of  lamentable  results  ;  it  is  therefore  essential 
accurately  to  discriminate  the  proper  application  of 
them. 

On  a  superficial  view,  direct  and  indirect  or  cir- 
cumstantial, would  appear  to  be  distinct  species  of 
evidence ;  whereas,  these  words  denote  only  the 
different  modes  in  which  those  classes  of  evidentiary 
facts  operate  to  produce  conviction.  Circumstantial 
evidence  is  of  a  nature  identically  the  same  with 
direct  evidence  ;  the  distinction  is,  that  by  direct 
EVIDENCE  is  intended  evidence  which  applies  directly 

c  2 


20  CIRCUMSTANTIAL    EVIDENCE. 

to  the  fact  which  forms  the  subject  of  inquiry,  the 
factum  probandiim ;  circumstantial  evidence  is 
equally  direct  in  its  nature,  but,  as  its  name  imports, 
it  is  direct  evidence  of  a  minor  fact  or  facts  inci- 
dental to  or  usually  connected  with  some  other  fact 
as  its  accident,  and  from  which  such  other  fact  is 
therefore  inferred.  A  witness  deposes  that  he  saw 
A.  inflict  on  B.  a  wound,  of  which  he  instantly  died  ; 
this  is  a  case  of  direct  evidence.  B.  dies  of  poison- 
ing ;  A.  is  proved  to  have  had  malice  and  uttered 
threats  against  him,  and  to  have  clandestinely  pur- 
chased poison,  wrapped  in  a  particular  paper,  and  of 
the  same  kind  as  that  which  has  caused  death  ;  the 
paper  is  found  in  his  secret  drawer,  and  the  poison 
gone.  The  evidence  of  these  facts  is  direct ;  the  facts 
themselves  are  indirect  and  circumstantial ,  as  applic- 
able to  the  inquiry  whether  a  murder  has  been 
committed,  and  whether  it  was  committed  by  A. 

So  rapid  are  our  intellectual  processes,  that  it  is 
frequently  difficult,  and  even  impossible,  to  trace  the 
connection  between  an  act  of  the  judgment,  and  the 
train  of  reasoning  of  which  it  is  the  result  ;  and  the 
one  appears  to  succeed  the  other  instantaneously, 
by  a  kind  of  necessity.  This  fact  obtains  most 
commonly  in  respect  of  matters  which  have  been 
frequently  the  objects  of  mental  association. 

In  matters  of  direct  testimony,  if  credence  be 
given  to  the  relators,  the  act  of  hearing  and  the  act 
of  belief,  though  really  not  so,  seem  to  be  contem- 
poraneous. But  the  case  is  very  different  when  we 
have    to    come    to  a    decision    upon    circumstantial 


CHARACTERISTICS.  21 

evidence,  the  judgment  in  respect  of  which  is  essen- 
tially inferential.  There  is  no  apparent  necessary 
connection  between  the  facts  and  the  inference  ;  the 
facts  may  be  true  and  the  inference  erroneous,  and 
it  is  only  by  comparison  with  the  results  of  observa- 
tion in  similar  or  analogous  circumstances,  that  we 
acquire  confidence  in  the  accuracy  of  our  conclusions. 

The  term  presumptive  is  frequently  used  as 
synonymous  with  circumstantial  evidence  ;  but  it 
is  not  so  used  with  strict  accuracy.  The  word 
"  presumption,"  ex  vi  termini,  imports  an  inference 
from  facts;  and  the  adjunct  "  presumptive,"  as  applied 
to  evidentiary  facts,  implies  if  not  the  certainty  at 
least  the  great  probability  of  some  relation  between 
the  facts  and  the  inference.  Circumstances  generally, 
but  not  necessarily,  lead  to  particular  inferences ; 
for  the  facts  may  be  indisputable,  and  yet  their 
relation  to  the  principal  fact  may  be  only  apparent 
and  not  real ;  and  even  when  the  connection  is  real, 
the  deduction  may  be  erroneous.  Circumstantial 
and  presumptive  evidence  differ  therefore  as  genus 
and  species. 

The  force  and  effect  of  circumstantial  evidence 
depend  upon  its  incompatibility  with,  and  incapa- 
bility of,  explanation  or  solution  upon  any  other 
supposition  than  that  of  the  truth  of  the  fact  which 
it  is  adduced  to  prove ;  the  mode  of  argument 
resembling  the  method  of  demonstration  by  the 
rednctio  ad  absurdiun.  But  this  is  a  part  of  the 
subject  which  will  more  appropriately  admit  of 
amplification  in  a  future  part  of  this  essay. 


22  circumstantial  evidence. 

Section  2. 

presumptions. 

It  is  essential  to  a  just  view  of  our  subject  that 
our  notions  of  the  nature  of  presumttions  should  be 
precise  and  distinct.  A  presumption  is  a  probable 
consequence,  drawn  from  facts  (either  certain,  or 
proved  by  direct  testimony),  as  to  the  truth  of  a  fact 
alleged,  but  of  which  there  is  no  direct  proof  It 
follows,  therefore,  that  a  presumption  of  any  fact 
is  an  inference  of  that  fact  from  others  that  are 
known  (a).  The  word  "  presumption,"  therefore, 
inherently  imports  an  act  of  reasoning, — a  conclusion 
of  the  judgment  ;  and  it  is  applied  to  denote  such 
facts  of  moral  phenomena,  as  from  experience  we 
know  to  be  invariably  or  commonly  connected  with 
some  other  related  fact  (d).  A  wounded  and  bleed- 
ing body  is  discovered  ;  the  pockets  are  empty 
and  have  the  appearance  of  having  been  rifled  ; 
wide  and  deep  footmarks  are  found  in  a  direction 
proceeding  from  the  body ;  or  a  person  is  seen 
running  from  the  spot.  In  the  one  case  are  observed 
marks  of  flight,  in  the  other  is  seen  the  fugitive, 
and  we  know  that  guilt  naturally  endeavours  to 
escape  detection.  These  circumstances  induce  the 
presumption  that  crime  has  been  committed  ;  the 
presumption  is  a  conclusion  or  consequence  from 
the  circumstances.      The  antecedent   circumstances 

(a)  Per  Abbott,  C.  J.,  in  Rex  v.  Burdett,  4  B.  &  Aid.  161. 

{p)  In  strictness  the  presumption  is  rather  the  link  which  experience 
tells  us  is  found  to  exist  between  certain  facts  and  certain  other  facts, 
but  it  is  so  commonly  used  to  denote  not  so  much  the  process  or 
method  of  connection  as  the  conclusion  itself,  that  this  passage  and 
many  others  have  been  left  as  in  the  original. 


PRESUMPTIONS.  23 

therefore  are  one  thing,  the  presumption  from 
them  another  and  different  one.  Of  presumptions 
afforded  by  moral  phenomena,  a  memorable  instance 
is  recorded  in  the  Judgment  of  Solomon,  whose 
knowledge  of  the  all-povverful  force  of  maternal  love 
supplied  him  with  an  infallible  criterion  of  truth  (^). 
So,  when  Aristippus,  who  had  been  cast  away  on 
an  unknown  shore,  saw  certain  geometrical  figures 
traced  in  the  sand,  his  inference  that  the  country 
was  inhabited  by  a  people  conversant  with  mathe- 
matics was  a  presumption  of  the  same  nature  {d). 
It  is  evident  that  this  kind  of  reasoning  is  not 
peculiar  to  legal  science,  but  is  a  logical  process 
common  to  every  subject  of  human   investigation. 

All  presumptions  connected  with  human  conduct 
are  inferences  founded  upon  the  observation  of 
man's  nature  as  a  sentient  being  and  a  moral  agent ; 
and  they  are  necessarily  infinite  in  variety  and 
number,  differing  according  to  the  diversities  of 
individual  character,  and  to  the  innumerable  and 
ever-chanp^ingr  situations  and  emergencies  in  which 
men  are  placed.  Hence  the  importance  of  a  know- 
ledge of  the  instincts,  affections,  desires,  and  moral 
capabilities  of  our  nature,  to  the  correct  deduction  of 
such  presumptions  as  are  founded  upon  them,  and 
which  are  therefore  called  natural  presumptions  {e). 

Legal  presumptions  are  founded  upon  natural 
presumptions,  being  such  natural   presumptions  as 

{c)  Domat's  Civil  Law,  b.  iii.  tit.  6,  s.  4,  §  6. 

{d)  Gambier's  Introduction  to  the  Study  of  Moral  Ev.  55. 

{e)  3  Mascardus  De  Probationibus,  Conclusio  MCCXXVI. 


24  CIRCUMSTANTIAL    EVIDENCE. 

are  connected  with  human  actions  so  far  as  they 
are  authoritatively  constituted  by  the  legislator  or 
deduced  by  the   magistrate. 

The  civilians  divided  legal  presumptions  into  two 
classes,  namely,  prccsiwiptiones  j'ttris  et  de  J2ire,  and 
prcestmipiioncs  juris  simply. 

Presumptions  of  the  former  class  were  such  as 
were  considered  to  be  founded  upon  a  connection 
and  relation  so  intimate  and  certain  between  the 
fact  known  and  the  fact  sought,  that  the  latter  was 
deemed  to  be  an  infallible  consequence  from  the 
existence  of  the  first.  Such  presumptions  were 
called  pro: sump tiones  juris,  because  their  force  and 
authority  were  recognized  by  the  law  ;  and  de  jure, 
because  they  were  made  the  foundation  of  certain 
specific  legal  consequences  (/),  against  which  no 
aro-ument  or  evidence  was  admissible  ;  while 
prcBstimptiones  jiwis  simply,  though  deduced  from 
facts  characteristic  of  truth,  were  always  subject  to 
be  o^'erthrown  by  proof  of  facts  leading  to  a  contrary 
presumption. 

In  matters  of  property,  the  principal  modifications 
of  which  are  matters  of  positive  institution,  the  laws 
of  every  country  have  created  artificial  legal  pre- 
sumptions, grounded  upon  reasons  of  policy  and 
convenience,  to  prevent  social  discord  and  to  fortify 
private  right.  The  justice  and  policy  of  such  regula- 
tions have  been  thus  eloquently  enforced  :  "  Civil 
cases  regard  property  :  now,  although  property  itself 

(/)  Menochius  De  Praesumptionibus,  lib.  i.  q.  3. 


PRESUMPTIONS.  2$ 

is  not,  yet  almost  everythinc;-  concernincr  property, 
and  all  its  modifications,  is  of  artificial  contrivance. 
The  rules  concerning-  it  become  more  positive,  as 
connected  with  positive  institutions.  The  legislator 
therefore  always,  the  jurist  frequently,  may  ordain 
certain  methods,  by  which  alone  they  will  suffer 
such  matters  to  be  known  and  established  ;  because 
their  very  essence,  for  the  greater  part,  depends  on 
the  arbitrary  conventions  of  men.  Men  act  on  them 
with  all  the  power  of  a  creator  over  his  creatures. 
They  make  fictions  of  law  and  presumptions  of  law 
{prcEsumptiojies  juris  et  dc  jure)  according  to  their 
ideas  of  utility — and  against  those  fictions,  and 
against  presumptions  so  created,  they  do  and  may 
reject  all  evidence  "  {g). 

But  in  penal  jurisprudence,  man  as  a  physical 
being  and  a  moral  agent,  such  as  he  is  by  natural 
constitution  and  by  the  influences  of  social  condition, 
is  the  subject  of  inquiry.  Punitive  justice  is,  for  the 
most  part,  applied  to  injurious  actions  proceeding 
from  malignity  of  purpose,  and  not  to  physical  actions 
merely.  It  has  been  said  with  great  force  and 
accuracy,  that  "  where  the  subject  is  of  a  physical 
nature,  or  of  a  moral  nature,  independent  of  their 
conventions,  men  have  no  other  reasonable  authority 
than  to  register  and  digest  the  results  of  experience 
and  observation "  ;  and  that  "  the  presumptions 
which   belong   to    criminal    cases  are   those  natural 

{g)  Burke's  Works  :  Report  from  the  Committee  of  the  House  of 
Commons  appointed  to  inspect  the  Lords'  Journals  in  relation  to  their 
proceeding  in  the  trial  of  Warren  Hastings,  Esquire,  under  heading 
"Circumstantial  Evidence."  Ed.  Rivington,  1822,  vol.  xivr.  p.  397. 
3  Mascardus  De  Probationibus.  ConclusioMCCXXVllI. 


26  CIRCUMSTANTIAL    EVIDENCE. 

and  popular  presumptions  which  are  only  obser- 
vations turned  into  maxims,  like  adages  and 
aj)ophtheL,mis,  and  are  admitted  (when  their  grounds 
are  established)  in  the  place  of  proof,  where  better 
is  wanting,  but  are  to  be  always  overturned  by 
counterproof "  (//).  Hence  therefore  a  third  class 
of  presumptions,  which  the  civilians  ZTi^^A  prasiimp- 
lioncs  Jiominis,  because  they  were  inferred  by  the 
sagacit}^  and  discretion  of  the  judge  from  the 
facts  judicially  before  him.  Such  presumptions  are 
in  fact  natural  presumptions  simply,  deriving  their 
force  from  that  relation  and  connection  which  are 
recognized  and  acknowledged  by  the  unsophisticated 
reason  of  all  observing  and  reflecting  men. 

Presumptions  of  every  kind,  to  be  just,  must  be 
dictated  by  nature  and  reason  ;  and,  except  under 
special  and  peculiar  circumstances,  it  is  impossible, 
without  a  dereliction  of  every  rational  principle,  to 
lay  down  positive  rules  of  presumption,  where  every 
case  must  of  necessity  be  connected  with  peculiarities 
of  personal  disposition  and  of  concomitant  circum- 
stances, and  be  therefore  irreducible  to  any  fixed 
principle.  In  criminal  jurisprudence,  therefore,  arbi- 
trary presumptions  should  be  sparingly  admitted, 
and  even  when  they  are  so,  they  occasionally  work 
injustice.  On  the  conviction  of  the  captain  of  a 
schooner  for  having  naval  stores  in  his  possession, 
Mr.  Baron  Alderson,  in  passing  sentence  of  six 
months'  imprisonment,  said  that  he  was  satisfied  the 

(Ji)  Burke's  Works  :  see  reference  p.  25,  supra.  See  p.  399  of 
edition  there  cited.  3  Mascardus  De  Pi-obationibus,  Conclusio 
Mccxxvni. 


PRESUMPTIONS.  27 

prisoner  had  become  possessed  of  the  stores  in 
ignorance  of  the  Act  of  ParHament,  but  that  it  was 
of  the  greatest  importance  that  its  provisions  should 
be  generally  known,  and  expressed  his  hope  that  his 
good  character  would  operate  to  obtain  a  mitigation 
of  the  sentence  (/).  It  would  be  as  unreasonable  to 
subject  human  actions  to  unbending  rules  of  pre- 
sumption, as  to  prescribe  to  the  commander  of  a 
ship  inflexible  rules  for  his  conduct,  without  any 
latitude  of  discretion  in  the  unforeseen  and  in- 
numerable accidents  and  contingencies  of  the 
tempest  and  the  ocean.  Where  a  peremptory  pre- 
sumption of  legal  guilt  is  not  pernicious  and  unjust, 
it  is  in  general  at  least  unnecessary  ;  for,  if  it  be  a 
fair  conclusion  of  the  reason,  it  will  be  adopted  by 
the  tribunals,  without  the  mandate  of  the  legislature. 
There  may,  no  doubt,  be  cases,  where  the  provisions 
of  the  law  are  peculiarly  liable  to  be  defeated  or 
evaded  by  subtle  contrivances  and  shifts  most  diffi- 
cult of  prevention.  But,  even  in  such  cases,  legal 
presumptions  can  only  be  justifiable  where  the  proxi- 
mate fact  from  which  the  presumption  is  made  to  flow 
is  clearly  of  a  guilty  character  and  tandtncy per  se,  and 
would  afford,  even  in  the  absence  of  legal  enactment, 
a  strong  moral  ground  of  presumption  indicative  ot 
the  particular  act  of  criminality  intended  to  be 
repressed  (X-)  ;  and  however  explicit  and  exclusive 
may  be  the  language  of  the  legislature,  the  tribunals 
must  by  an  inherent  necessity  give  effect  to  all  such 
surrounding   circumstances    as    tend    to    repel    or 

(i)  Reg.  V.  Tranttock,  Liverpool  Winter  Ass.  1848. 
(k)  Traite    des    Preuves,    par     Bonnier,    2nd  ed.    1852,   p.   702, 
§  752. 


28  CIRCUMSTANTIAL    EVIDENCE. 

modify  the  particular  presumption,  or  to  create  a 
counter-presumption  of  equal  or  superior  weight  (/). 
It  is  impossible  to  recall  without  somethin_i(  akin  to 
horror  the  law  (w)  which  made  the  concealment  of 
the  death  of  an  illegitimate  child  by  its  mother, 
conclusive  evidence  of  murder,  unless  she  could 
make  proof,  by  one  witness  at  least,  that  the  child 
was  born  dead,  which  too  long  disgraced  our  statute- 
book  ;  whereas  in  truth  it  affords  no  ground  to 
warrant  such  a  conclusion,  since  it  is  more  natural  and 
more  just  to  attribute  the  suppression  to  a  desire  to 
conceal  shame  and  to  escape  dishonour. 

Modern  legislation  has  introduced  a  large  class  of 
offences,  where  the  only  suggestion  of  moral  guilt 
lies  in  the  fact  of  disobedience  to  the  law.  Offences 
against  building  acts  and  byelaws  for  the  regulation 
of  towns  and  other  communities  are  typical  examples. 
There  is  no  room  in  such  cases  for  any  presumption. 
Legislation  says  that  such  a  thing  shall  or  shall  not 
be  done,  and  affixes  a  penalty  to  noncompliance  with 
the  enactment.     That  is  all. 

As  evidentiary  circumstances  and  their  combina- 
tions are  infinitely  varied,  so  also  are  the  presumptions 
to  which  they  lead  ;  and  a  complete  enumeration 
would  in  either  case  be  impracticable.  The  writers 
on  the  civil  law  have  made  a  comprehensive  and 
instructive  collection  of  facts  and  inferential  conclu- 
sions, in  relation  to  a  vast  number  of  actions  connected 

(/)  See  infra,  ch.  iii.  s.  8,  pp.  128,  130. 

{ill)  Stat.  21  Jac.  I.  c.  27,  now  repealed.     See  inrra^  ch.  vii.  s.  5, 
sub-s.  3,  p.  356. 


PRESUMPTIONS.  29 

with  legal  accountability.  But  many  things  advanced 
by  those  laborious  and  elaborate  authors  have  rela- 
tion to  a  state  of  society,  and  to  legal  institutions  and 
modes  of  procedure,  wholly  dissimilar  from  our  own. 
The  law  of  England  admits  of  no  such  thing  as 
the  seiui-plcna  probatio,  founded  on  circumstances 
of  conjecture  and  suspicion  only,  which  in  many 
countries  governed  by  the  Roman  law,  was  held  to 
warrant  the  infliction  of  torture  with  a  view  to 
compel  admissions  and  complete  imperfect  proof. 
Hence  the  total  inapplicability  with  us  of  the  sub- 
divisions of  indicia,  signa^  adininiciila,  conjecturce, 
dubia,  and  siispicioncs,  which  are  found  in  the  writers 
of  other  countries  whose  jurisprudence  is  founded 
upon  that  of  Rome — subdivisions  which  appear  to 
be  arbitrary,  vague,  and  useless.  But  it  is  manifest 
that,  under  legal  institutions  which  admitted  of  com- 
pulsory self-accusation,  in  order  to  complete  proof 
insufficient  and  inconclusive  in  itself,  and  where  the 
laws  were  administered  by  a  single  judge,  without 
the  salutary  restraints  of  publicity  and  criticism,  an 
accurate  and  elaborate  record  of  the  multitudinous 
actions  and  occurrences  which  had  been  submitted 
to  the  criminal  tribunals,  operated  as  an  important 
limitation  upon  the  tyranny  and  inconstancy  of 
judicial  discretion. 

It  is  calculated  to  excite  surprise,  that  arbitrary 
technical  rules  should  ever  have  been  adopted  for 
estimating  the  force  and  effect  of  particular  facts  as 
leading  to  presumptions  ;  a  matter  purely  of  reason 
and  logic.  It  is  probable,  nevertheless,  that  the 
attempt    originated  in   the  desire   to  escape  a  still 


30  CIRCUMSTANTIAL    EVIDENCE. 

o-reater  absurdity.  "  Tcsfis  iiiuis,  testis  mdhis'* 
"  wins  testis  non  est  mcdiendus"  were  fundamental 
maxims  of  the  text-writers  on  the  Civil  and  Canon 
Laws,  and  of  most  ancient  codes  (71),  as  they  still  are 
of  judicial  procedure  in  many  parts  of  Europe  {0). 
Since  presumptions  have  not  the  same  force  as 
direct  evidence,  it  was  supposed  to  be  required,  as  a 
logical  sequence,  that  there  should  be  a  concurrence 
of  three  presumptions,  as  the  imaginary  equivalent 
for  the  testimony  of  two  ocular  witnesses,  where  such 
testimony  was  not  to  be  had.  It  is  discreditable  to 
the  state  of  moral  and  legal  science  that  these  absurd 
and  antiquated  notions,  worthy  of  the  darkest  ages 
of  society,  should  have  been  countenanced  and  per- 
petuated in  the  legislation  of  several  of  the  nations 
of  Europe  even  in  modern  times  (/>).  It  is  obvious 
that  a  single  presumption  may  be  conclusive,  and 
that  an  accumulation  of  many  presumptions  may 
be  of  but  little  weight.  The  simplest  and  most 
elementary  dictates  of  common  sense  require  that 
presumptions  should  not  be  numbered  merely,  but 
that  they  should  be  weighed  according  to  the 
principles  which  are  applied  in  estimating  the  effect 
of  testimonial  evidence. 

In  this  connection  we  may  remember  what  a  dis- 
tinguished historian  has  said  :  "  It  can  by  no  means 
be  laid  down  as  a  general  maxim  that  the  assertion 

{ft)  Deut.  xvii.  6,  xix.  15  ;  Numb.  xxxv.  30  ;  4  Michaelis  Comment- 
aries on  the  Laws  of  Moses,  by  Smith,  Art.  ccxcix.  "of  Witnesses." 

{0)  Code  HoUandais,  1838;  Code  Penal  d'Autriche ;  Code  de 
Baviere,  and  many  other  German  Codes. 

{p)  Code  Criminel  de  Prusse,  1805  ;  Code  de  Procedure  Criminelle 
d'Autriche,  1853;  ditto  de  Modene,  1855. 


PRESUMPTIONS. 


31 


of  two  witnesses  is  more  convincinp^  to  the  mind 
than  the  assertion  of  one  witness.  The  story  told 
by  one  witness  may  be  in  itself  probable.  The 
story  told  by  two  witnesses  may  be  extravagant. 
The  story  told  by  one  witness  may  be  uncontra- 
dicted. The  story  told  by  two  witnesses  may  be 
contradicted  by  four  witnesses.  The  story  told  by 
one  witness  may  be  corroborated  by  a  crowd  of  cir- 
cumstances. The  story  told  by  two  witnesses  may 
have  no  such  corroboration.  The  one  witness  may 
be  a  Tillotson  or  Ken.  The  two  witnesses  may  be 
Oates  or  Bedloe  "  (^). 

The  prevalence  of  these  fallacious  methods  of 
judging  of  the  force  of  evidence,  explains  the  founda- 
tion of  the  practice,  abhorrent  alike  to  justice  and 
common  sense,  of  condemning  to  a  minor  punish- 
ment persons  who  may  be  innocent,  but  against 
whom  there  may  exist  apparent  grounds  of  strong 
presumption,  though  not  that  exact  kind  and  amount 
of  proof  which  the  rules  of  evidence  arbitrarily 
and  unreasonably  require ;  as  if  a  middle  term  in 
criminal  jurisprudence  were  not  absurd  and  self-con- 
tradictory (r).  An  eminent  foreign  jurist  well  re- 
marks, that,  **  Jamais  il  n'y  a  eu  plus  de  condamna- 
tions  injustes  que  sous  I'enipire  dune  jurisprudence 
qui  defendait  de  prononcer  la  peine  capitale  sur  de 
simples  indices  "  (s). 

(g)  Macaulay,  History  of  England,  ch.  xxii. 

(r)  See  several  such  cases  in  Narratives  of  Remarkable  Criminal 
Trials,  translated  from  the  German  of  Feuerbach,  by  Lady  Duff 
Gordon.  A  Berne,  in  1842,  a  man  accused  of  murder  by  poisoning 
was  sentenced  to  six  years'  imprisonment,  as  vehcDientevicnt  suspect. 

(j)  Bonnier,  Traite  des  Preuves,  2nd  ed.  1852,  p.  677,  §  719. 


32  CIRCUMSTANTIAL    EVIDENCE. 

The  unreasonable  stress,  which  in  many  countries 
whose  criminal  procedure  is  derived  from  the  Civil 
Law,  is  laid  upon  the  confession  of  the  accused,  and 
the  unwarrantable  means  which  are  resorted  to  in 
order  to  obtain  it,  are  the  natural  results  of  arbitrary 
and  unphllosophical  rules  of  evidence,  which  neces- 
sarily have  the  effect  of  closing  many  of  the  channels 
of  truth  ;  and  frequently  render  it  so  difficult  to 
obtain  full  legal  proof  of  crime,  that  Anselm  von 
Feuerbach.who  was  an  eminent  continental  jurist  and 
criminal  judge,  declared,  many  years  ago,  tliat  unless 
a  man  chose  to  perpetrate  his  crimes  in  public,  or  to 
confess  them,  he  need  not  fear  a  conviction  (/). 

Attempts  have  been  made  by  our  own  juridical 
writers,  but  with  no  useful  result,  to  classify  pre- 
sumptions in  a  more  general  way  under  terms  ex- 
pressive of  their  effect,  as  violent  or  necessary, 
PROBABLE  or  GRAVE,  and  SLIGHT  (?/).  But  this  arrange- 
ment is  specious  and  fanciful  rather  than  practical 
and  real  ;  nor  is  it  entirely  accurate,  since  a  pre- 
sumption may  be  violent  and  yet  not  necessary  (x). 
A  more  precise  and  intelligible  classification  of 
presumptions  is  into,  violent  or  strong,  and  slight. 
But    it  is   impossible  thus  to  classify    more  than  a 

(t)  See  Edinburgh  Review,  Ixxxii.  (1845)  at  p.  330,  and  see  in 
Christison  on  Poisons,  4th  ed.  p.  68,  a  German  case  where  the  crime 
of  murder  by  poisoning  was  considered  as  not  fully  proved  because 
the  prisoner  would  not  confess,  but  on  account  of  the  stronij  probabihty 
of  his  guilt  he  was  condemned  to  fifteen  years'  imprisonment. 

ill)  Bentham's  Rationale  of  Judicial  Evidence,  b.  i.  c.  vi.  s.  5  ; 
Coke  on  Litt.  6  b.  ;  3  IJlackstone's  Comm.  b.  vii.  p.  371. 

{x)  See  Menochius  De  Prassumptionibus,  Ub.  i.  q.  3,  nos.  i,  2,  3  ; 
Essai  des  Preuves,  par  Gabriel,  373  ;  Best  on  Presumptions  (1844), 
§§30  and  31,  p.  37. 


PRESUMPTIONS.  33 

comparatively  few  of  the  infinite  variety  of  circum- 
stances connected  with  human  actions  and  motives, 
or  to  lay  down  rules  for  distinguishing  presumptions 
of  one  of  these  classes  from  those  of  another;  and  the 
terms  of  designation,  from  the  inherent  imperfections 
of  language,  although  not  wholly  destitute  of  utility, 
are  unavoidably  defective  in  precision.  We  can 
therefore  only  usefully  apply  these  epithets  as  rela- 
tive terms  ;  and  the  effect  of  particular  facts  must  of 
necessity  depend  upon  the  reality  and  closeness  of 
the  connection  between  the  principal  and  secondary 
facts,  and  upon  a  variety  of  considerations  peculiar 
to  each  individual  case,  and  can  no  more  be  pre- 
dicated than  the  bou.idaries  can  be  defined,  of  the 
separate  colours  which  form  the  solar  spectrum. 

It  is  convenient,  and  may  be  advantageous  even, 
in  order  to  obtain  a  comprehensive  view  of  the  ten- 
dencies and  effect  of  a  number  of  circumstances,  to 
group  them  together  in  their  chronological  relation 
to  the  factum  probandum,  as  antecedent,  concomi- 
tant, and  subsequent;  but  to  require  the  concurrence 
of  these  several  kinds  of  presumption,  as  in  the 
Bavarian  criminal  code  of  1813,  is  an  outrage  upon 
all  legal  and  philosophical  principle  (^'). 

By  various  statutes,  many  acts  are  made  legal 
presumptions  of  guilt,  and  the  onus  of  proving  any 
matter  of  defence  is  expressly  cast  upon  the  party 
accused  ;  but,  with  these  exceptions,  the  truth  of 
every  accusation   is   determined  by  the   voice  of  a 

ij)  Bonnier,  Traite  des  Preuves,  2nd  ed.  1852,  p.  683,  §  727  ;  Trait6 
He  la  Preuve,  par  Mittermaier  (traduit  par  Alexandre),  c.  61. 
C.E.  D 


34  CIRCUMSTANTIAL    EVIDENCE. 

tribunal,  upon  consideration  of  the  intrinsic  and 
independent  merits  of  each  particular  case,  acting 
upon  those  principles  of  reason  and  judoment  by 
which  mankind  are  governed  in  all  other  cases 
where  the  same  intellectual  process  is  called  into 
exercise,  unfettered  by  any  obligatory  and  inflexible 
presumptions.  The  inexpediency  and  inefficacy  of 
positive  presumptions,  as  indications  of  the  criminality 
of  intention,  in  which  alone  consists  the  essence  of 
legal  guilt,  have  been  thus  exposed  with  equal  force 
and  elegance  by  the  hand  of  a  master  : — "  The  con- 
nection of  the  intention  and  the  circumstances,  is 
plainly  of  such  a  nature,  as  more  to  depend  on  the 
sagacity  of  the  observer  than  on  the  excellency  of 
any  rule.  The  pains  taken  by  the  civilians  on  that 
subject  have  not  been  very  fruitful  ;  and  the  English 
law-writers  have,  perhaps  as  wisely,  in  a  manner 
abandoned  the  pursuit.  In  truth,  it  seems  a  wild 
attempt  to  lay  down  any  rule  for  the  proof  of 
intention  by  circumstantial  evidence  "  (z). 

Section  3. 

relative  value  of  direct  and  indirect  or 
circumstantial  evidence  (a). 

The  foregoing  observations  naturally  lead  to  a 
comparison  of  the  relative  value  of  Direct  and  In- 
direct or  Circumstantial  Evidence  ;  an  inquiry  which 

(2)  Burke's  Works  :  for  reference  see  p.  25,  supra,  at  place  there 
cited. 

(«)  The  whole  subject  of  this  chapter  is  admirably  discussed  in 
Wharton  on  Criminal  Evidence,  9th  ed.  1884,  ch.  i. 


DIRECT    AND    CIRCUMSTANTIAL    EVIDENCE.  35 

becomes  the  more  necessary,  on  account  of  some 
novel  and  questionable  doctrines  which  have  received 
countenance  even  from  the  judgment-seat. 

The  best  writers,  ancient  and  modern,  on  the 
subject  of  evidence,  have  concurred  in  treating 
circumstantial  as  inferior  in  cogency  and  effect  to 
direct  evidence  ;  a  conclusion  which  seems  to  follow 
necessarily  from  the  very  nature  of  the  different 
kinds  of  evidence.  But  language  of  a  directly 
contrary  import  has  been  so  often  used  by  authorities 
of  no  mean  note,  as  to  have  become  almost  proverbial, 
and  to  require  examination. 

It  has  been  said  that  "  circumstances  are  inflexible 
proofs.  They  will  not  bend  to  the  inclinations  of 
parties.  Witnesses  may  be  mistaken — may  be 
corrupted ;  things  can  be  neither ;  and  therefore, 
so  far  as  they  go,  deserve  unlimited,  unreserved 
faith  "  {b).  '*  Circumstances,"  says  Paley,  "  cannot 
lie"(^).  It  is  astonishing  that  sophisms  like  these 
should  have  passed  current  without  animadversion. 
The  '^  circumstances  "  are  assumed  to  be  in  every 
case  established  beyond  the  possibility  of  mistake  ; 
and  it  is  implied,  that  a  circumstance  established  to 
be  true  possesses  some  mysterious  force  of  its  own, 
special  in  its  nature  and  essence.  Now,  a  circumstance 
is  neither  more  nor  less  than  a  minor  fact,  and  it  may 
be  admitted  of  all  facts,  that  they  cannot  lie  ;  for  a 
fact  cannot  at  the  same  time  exist  and  not  exist  :  so 
that  in  truth,  the  doctrine  is  merely  the  expression 

{b)  Burnett's  Criminal  Law  of  Scotland  (181 1),  523,  footnote. 
(<r)  Principles  of  Moral  and  Political  Philosophy,  b.  vi.  c.  ix. 

D    2 


3G  CIRCUMSTANTIAL    EVIDENCE. 

of  a  truism,  that  a  fact  is  a  fact.  It  may  also  be 
admitted  that  "  circumstances  are  inflexible  proofs," 
but  assuredly  of  nothing  more  than  of  their  own 
existence  :  so  that  this  assertion  is  only  a  repetition 
of  the  same  truism  in  different  terms.  It  seems  also 
to  have  been  overlooked,  that  circumstances  and 
facts  of  every  kind  must  be  proved  by  human  testi- 
mony ;  that  although  "  circumstances  cannot  lie," 
the  narrators  of  them  may  ;  that,  like  witnesses  of 
all  other  facts,  they  may  be  biassed  or  mistaken, 
and  that  the  facts,  even  if  indisputably  true,  may 
lead  to  erroneous  inference.  Thus  far,  then,  cir- 
cumstantial possesses  no  advantage  over  direct 
evidence. 

A  distinguished  statesman  and  orator  has  advanced 
in  unqualified  terms  the  proposition,  supported,  he 
alleges,  by  the  learned,  that  "  when  circumstantial 
proof  is  in  its  greatest  perfection,  that  is  when  it  is 
most  abundant  in  circumstances,  it  is  much  superior 
to  positive  proof"  {(^).  Paley  has  said,  with  more 
of  caution,  that  "  a  concurrence  of  well-authenticated 
circumstances  composes  a  stronger  ground  of  assur- 
ance than  positive  testimony,  unconfirmed  by  cir- 
cumstances, usually  affords  "  (e).  Mr.  Baron  Legge, 
upon  a  trial  for  murder,  after  speaking  of  that 
"  which  the  law  calls  a  violent  presumption,"  told 
the  jury  that  "  where  a  presumption  necessarily 
arises  from  circumstances,  they  are  more  convincing 
and  satisfactory  than   any   other  kind  of  evidence, 

{d)  Burke's  Works.  For  reference  see  p.  25,  supra.  See  p.  402  of 
the  edition  there  cited. 

(^)  Moral  and  Political  Philosophy,  b.  vi.  c.  ix. 


DIRECT    AND    CIRCUMSTANTIAL    EVIDENCE.  37 

because  facts  cannot  lie'' [f).  Air.  Justice  Duller, 
in  his  charge  to  the  jury  in  Donellan's  case,  said 
*'  that  a  presumption  which  necessarily  arises  from 
circumstances  is  very  often  more  convincing  and 
more  satisfactory  than  any  other  kind  of  evidence, 
because  it  is  not  within  the  reach  and  compass  of 
human  abilities  to  invent  a  train  of  circumstances 
which  shall  be  so  connected  together  as  to  amount 
to  a  proof  of  guilt,  without  affording  opportunities 
of  contradicting  a  great  part  if  not  all  of  those 
circumstances  "  (^■). 

It  is  obvious  that  the  doctrine  laid  down  in  these 
several  passages  is  propounded  in  language  which 
not  only  does  not  accurately  state  the  question, 
but  implies  a  fallacy,  and  that  extreme  cases — the 
strongest  ones  of  circumstantial,  and  the  weakest 
of  positive  evidence — have  been  selected  for  the 
illustration  and  support  of  a  general  position.  "A 
presumption  which  necessarily  arises  from  circum- 
stances" cannot  admit  of  dispute,  and  requires  no 
corroboration ;  but  then  it  cannot  in  fairness  be 
contrasted  with  and  opposed  to  positive  testimony, 
unless  of  a  nature  equally  cogent  and  infallible.  If 
evidence  be  so  strong  as  necessarily  to  produce 
certainty  and  conviction,  it  matters  not  by  what 
kind  of  evidence  the  effect  is  produced  ;  and  the 
intensity  of  the   proof  must  be  precisely  the  same, 

(/)  Rex  V.  Blandy,  18  State  Trials,  1187.  The  italics  are  the 
authors. 

(^g)  The  trial  of  John  Donellan,  Esq.,  for  the  wilful  murder  of  Sir 
Theodosius  Boughton,  Bart.,  at  the  Assize  at  Warwick,  March  50th,  1 78 1. 
Taken  in  shorthand  by  Joseph  Gurney  (London),  1781.  The  facts  of 
this  case  are  set  out  in  detail  below,  in  ch.  vii.  s.  4,  pp.  324 — 330, 


38  CIRCUMSTANTIAL    EVIDENCE. 

whether  the  evidence  be  direct  or  circumstantial. 
It  is  not  intended  to  deny  that  circumstantial 
evidence  affords  a  safe  and  satisfactory  ground  of 
assurance  and  beHef;  nor  that  in  many  individual 
instances  it  may  be  superior  in  proving  power  to 
other  individual  cases  of  proof  by  direct  evidence. 
But  a  judgment  based  upon  circumstantial  evidence 
cannot,  in  any  case,  be  more  satisfactory  than  when 
the  same  result  is  produced  by  direct  evidence,  free 
from  suspicion  of  bias  or  mistake. 

Perhaps  no  single  circumstance  has  been  so  often 
considered  as  certain  and  unequivocal  in  its  effect, 
as  the  anno-domini  water-mark  usually  contained  in 
the  fabric  of  writing-paper  ;  and  in  many  instances 
it  has  led  to  the  exposure  of  fraud  in  the  propounding 
of  forged  as  genuine  instruments.  But  it  is  beyond 
any  doubt  (and  several  instances  of  the  kind  have 
occurred  in  the  criminal  and  civil  courts)  that  issues 
of  paper  have  taken  place  bearing  the  water-mark 
of  the  year  succeeding  that  of  its  distribution, — a 
striking  exemplification  of  the  fallacy  of  some  of 
the  arguments  which  have  been  remarked  upon. 
How  often  has  it  been  iterated  in  such  cases,  that 
circumstances  are  inflexible  facts,  and  that  facts 
cannot  lie ! 

The  proper  effect  of  circumstantial,  as  compared 
with  direct  evidence,  was  more  accurately  stated  by 
Lord  Chief  Baron  Macdonald.  "When  circum- 
stances connect  themselves  closely  with  each  other, 
when  they  form  a  large  and  a  strong  body,  so  as  to 
carry  conviction  to  the  minds  of  a  jury,  it  may  be 


DIRECT    AND    CIRCUMSTANTIAL    EVIDENCE.  39 

proof  of  a  more  satisfactory  sort  than  that  which  is 
direct.  In  some  lamentable  instances  it  has  been 
known  that  a  short  story  has  been  got  by  heart,  by 
two  or  three  witnesses  ;  they  have  been  consistent 
with  themselves,  they  have  been  consistent  with 
each  other,  swearing  positively  to  a  fact,  which  fact 
has  turned  out  afterwards  not  to  be  true.  It  is 
almost  impossible  for  a  variety  of  witnesses,  speaking 
to  a  variety  of  circumstances,  so  to  concert  a  story, 
as  to  impose  upon  a  jury  by  a  fabrication  of  that 
sort,  so  that  where  it  is  cogent,  strong  and  powerful 
where  the  witnesses  do  not  contradict  each  other, 
or  do  not  contradict  themselves,  it  may  be  evidence, 
more  satisfactory  than  even  direct  evidence  ;  and 
there  are  more  instances  than  one  where  that  has 
been  the  case "(//).  In  another  case  the  same 
learned  judge  said,  "  Where  the  proof  arises  from 
the  irresistible  force  of  a  number  of  circumstances, 
which  we  cannot  conceive  to  be  fraudulently  brought 
together  to  bear  upon  one  point,  that  is  less  fal- 
lible than  under  some  ciraunstances  direct  evidence 
MAY  BE  "  {i\ 

But,  in  truth,  direct  and  circumstantial  evidence 
ought  not  to  be  placed  in  contrast,  since  they  are 
not  mutually  opposed  ;  for  evidence  of  a  circum- 
stantial and  secondary  nature  can  never  be  justifiably 
resorted  to,  except  where  evidence  of  a  direct  and 
therefore  of  a  superior  nature  is  unattainable. 

(Ji)  Rex  V.  Patch,  Surrey  Spring  Assizes,  1806.  Several  contem- 
porary reports  are  to  be  found.  The  facts  of  the  case  are  set  out  in 
detail  below  at  p.  390. 

(z)  Rex  V.  Smith,  for  arson,  Old  Bailey,  June  15th,  1S13.  Shorthand 
Report  by  Gurney. 


40  CIRCUMSTANTIAL    EVIDENCE. 

The  arL^umcnt  founded  upon  the  abundance  of 
the  circumstances,  and  the  consequent  opportunities 
of  contradiction  which  they  afford,  belongs  to  anotl^er 
[)art  of  the  subject.  While  each  of  these  incidents 
adds  sj^reatly  to  the  probative  force  of  circumstantial 
evidence  in  particular  cases,  they  have  clearly  no 
connection  with  an  inquiry  into  the  value  of  circum- 
stantial evidence  in  the  abstract.  However  numerous 
may  be  the  independent  circumstances  to  which  the 
witnesses  depose,  the  result  cannot  be  of  a  different 
kind  from,  or  superior  to,  that  strong  moral  assurance 
which  is  the  consequence  of  satisfactory  proof  by 
direct  testimony,  and  for  which,  if  such  proof  be 
attainable,  every  tribunal,  every  reasonable  mind 
would  reject  any  attempt  to  substitute  indirect  or 
circumstantial  evidence,  as  afibrdinof  strong:  reason 
for  suspicion  and  disbelief. 

It  has  been  said,  that  ''though  no  doubt  in  most 
cases  of  circumstantial  evidence  there  be  2i possibility 
that  the  prisoner  may  be  innocent,  the  same  often 
holds  in  cases  of  direct  proof,  where  witnesses  may 
err  as  to  identity  of  person,  or  corruptly  falsify,  for 
reasons  that  are  at  the  time  unknown  "  {k).  This 
observation  is  unquestionably  true.  Even  the  testi- 
mony of  the  senses,  though  it  affords  the  safest 
ground  of  moral  assurance,  cannot  be  implicitly 
depended  upon,  even  where  the  veracity  of  the  wit- 
nesses is  above  all  suspicion.  An  eminent  barrister, 
a  gentleman  of  acute  mind  and  strong  understanding, 
swore  positively  to  the  persons  of  tw^o  men,  whom 
he  charged  with  robbing  him  in  the  open  daylight. 

(/{)  Burnett's  Criminal  Law  of  Scotland  (1811),  524. 


DIRECT    AND    CIRCUMSTANTIAL    EVIDENCE.  4I 

But  it  was  proved  by  conclusive  evidence,  that  the 
men  on  trial  were,  at  the  time  of  the  robbery,  at  so 
remote  a  distance  from  the  spot  that  the  thing  was 
impossible.  The  consequence  was,  that  they  were 
acquitted,  and  some  time  afterwards  the  robbers 
were  taken,  and  the  articles  stolen  found  upon  them. 
The  prosecutor,  on  seeing  these  men,  candidly 
acknowledged  his  mistake,  and  it  is  said  eave  a 
recompense  to  the  persons  he  prosecuted,  and  who  so 
narrowly  escaped  conviction (/).  It  is  probable  that  he 
was  deceived  by  the  broad  glare  of  sunlight,  but  there 
can  be  no  doubt  of  the  sincerity  of  his  impressions. 

Many  similar  instances  are  upon  record  of  the 
fallibility  of  human  testimony,  even  as  to  matters 
supposed  to  be  grounded  upon  the  clearest  evidence 
of  the  senses,  and  where  the  misconception  has  re- 
lated to  the  substantive  matters  of  judicial  inquiry. 
It  has  been  said  with  the  strictest  philosophical  truth, 
that  "  proof  is  nothing  more  than  a  presumption  of 
the  highest  order  "  (w).  But  these  considerations, 
instead  of  establishing  the  superior  efficacy  of  cir- 
cumstantial evidence,  seem  irresistibly  to  lead  to  the 
conclusion  that  it  is,  a  fortiori,  more  probable  that 
similar  misconception  may  take  place  as  to  collateral 
facts  and  incidents,  to  which  perhaps  particular 
attention  may  not  have  been  excited. 

There  is  another  source  of  fallacy  and  danger,  to 
t 

[T)  Rex  V.  Wood  and  Brown.  This  anecdote  is  told  of  Sir  Thomas 
Davenport  in  28  State  Trials  at  col.  819  ;  Ann.  Reg.  17S4. 

{m)  Per  Lord  Erskine  in  the  Banbury  Peerage  Case,  reported  at 
length  in  Nicholas  on  Adulterine  Bastardy.    See  at  p.  501. 


42  CIRCUMSTANTIAL    EVIDENCE. 

which,  as  already  intimated,  circumstantial  evidence 
is  peculiarly  liable,  and  of  which  it  is  necessary  to 
be  especially  mindful.  Where  the  evidence  is  direct, 
and  the  testimony  credible,  belief  is  the  immediate 
and  necessary  result  ;  whereas,  in  cases  of  circum- 
stantial evidence,  processes  of  inference  and  deduc- 
tion are  essentially  involved, — frequently  of  a  deli- 
cate and  perplexing  character, — liable  to  numerous 
causes  of  fallacy,  some  of  them  inherent  in  the  nature 
of  the  mind  itself,  which  has  been  profoundly  com- 
pared to  the  distorting  power  of  an  uneven  mirror, 
imparting  its  own  nature  upon  the  true  nature  of 
things  {71).  Mr.  Baron  Alderson,  upon  a  trial  of  this 
kind,  said,  "  It  was  necessary  to  warn  the  jury  against 
the  danger  of  being  misled  by  a  train  of  circum- 
stantial evidence.  The  mind  was  apt  to  take  a 
pleasure  in  adapting  circumstances  to  one  another, 
and  even  in  straining  them  a  little,  if  need  be,  to 
force  them  to  form  parts  of  one  connected  whole  ; 
and  the  more  ingenious  the  mind  of  the  individual, 
the  more  likely  was  it,  in  considering  such  matters, 
to  overreach  and  mislead  itself,  to  supply  some  little 
link  that  is  wanting,  to  take  for  granted  some  fact 
consistent  with  its  previous  theories  and  necessary 
to  render  them  complete  "  (<?). 

It  maybe  objected  that  the  foregoing  observations 
tend  to  create  distrust  in  all  human  testimony.  While 
it  must  be  admitted  that  the  senses  cannot  be  im- 

(n)  Novum  Organum,  lib.  i.  Aph.  41,  45  ;  Best  on  Presumptions 
(1844),  p.  255  ;  and  see  Bentham's  Rationale  of  Jud.  Ev.  b.  v.  c.  xv. 
s.  iv. 

(fl)  Reg,  V.  Hodges,  2  Lewin,  C.  C.  227.  The  learned  Baron's 
remarks  are  taken  from  a  MS.  report  of  the  time. 


SOURCES    AND    CLASSIFICATION.  43 

pHcitly  depended  upon,  it  is  certain  that  their  liability 
to  mistake  may  be  greatly  diminished  by  habits 
of  accurate  observation  and  relation.  The  general 
conformity  of  our  impressions  to  truth  and  nature, 
and  the  universal  opinion  and  practice  of  mankind, 
establish  the  reasonableness  and  propriety  of  our 
faith  in  testimonial  evidence.  The  interest  to  which 
all  controverted  matters  of  fact  give  occasion,  is  a 
manifestation  of  the  preference  in  the  human  mind 
of  truth  to  falsehood  :  and,  finally,  the  number  of 
mistaken  inferences  from  the  testimony  of  the  senses 
is  inconceivably  small,  as  compared  with  the  alhiost 
infinite  number  of  judgments  which  are  correctly 
drawn  from  evidence  of  the  kind  in  question. 

Section  4. 

of  the  sources  and  classification  of  circum- 
stantial evidence. 

In  the  present  state  of  knowledge  there  can  be 
little  danger  of  mistake  as  to  the  legitimate  subjects 
of  human  belief;  but  how  melancholy  is  the  picture 
of  the  human  intellect  exhibited  in  the  records 
of  superstition,  imposture,  and  delusion,  of  enthu- 
siasm and  credulity,  of  judicial  darkness  and  cruelty, 
in  the  pages  of  our  own  history,  as  well  as  in  those 
of  every  other  nation  ! 

A  profound  ignorance  of  the  laws  of  nature,  an 
inability  to  account  for  the  origin  of  evil,  and  to 
reconcile  its  existence  with  the  Divine  attributes, 
and  the  impuhe  to  avenge  wrongs  for  which  human 


44  CIRCUMSTANTIAL    EVIDENCE. 

institutions  afforded  no  remedy,  led  to  a  universal 
belief  in  the  supernatural  interposition  of  the  Supreme 
Being  on  behalf  of  his  injured  moral  offspring.  Of 
this  persuasion,  augury,  divination,  judicial  combat, 
the  various  forms  of  trial  by  ordeal,  the  supposed 
intimations  of  truth  conveyed  by  means  of  appari- 
tions and  dreams,  the  bleeding  of  a  corpse  in  the 
presence  of  the  murderer,  and  his  reluctance  to  touch 
it  (/),  were  thought  to  be  so  many  manifestations  ; 
while,  with  the  wildest  inconsistency,  the  belief  was 
equally  general  in  the  existence  and  influence  of 
witchcraft  and  other  modes  of  demoniacal  agency 
over  the  minds  and  actions  of  men.  The  history  of 
all  nations  affords  lamentable  memorials  of  judicial 
murders,  the  natural  consequences  of  such  mistaken 
and  desfradino-  views.  Without  advertino^  to  other 
reasons,  it  is  conclusive  against  all  departure  by  the 
Supreme  Being  from  the  ordinary  course  of  His 
administration,  that  so  many  instances  of  erroneous 
conviction  and  execution  have  occurred  in  all  ages 
and  in  all  countries. 

The  course  of  external  nature,  and  the  mental  and 
physical  constitution  of  man,  and  his  actions  and 
moral  and  mechanical  relations,  are  the  only  sources 
of  correct  inference  from  those  facts  which  constitute 
circumstantial  evidence. 

In  every  inquiry  into  the  truth  of  any  alleged  fact,  as 
to  which  the  materials  for  our  judgment  are  secondary 
facts,  there  must  exist  relations  and  dependencies, 

{p)  See  Rex  v.  Standsjield,  ii   St.  Tr.  at  col.    1403;   and  Rex  v. 
OkemaHy  14  St.  Tr.  1324. 


SOURCES    AND    CLASSIFICATION.  45 

inseparable  from  the  principal  fact,  which  will  com- 
monly be  manifested  by  external  appearances.  No 
action  of  a  rational  being  is  indifferent  or  independent ; 
and  every  such  action  must  necessarily  be  connected 
with  antecedent,  concomitant,  and  subsequent  con- 
ditions of  mind,  and  with  external  circumstances  of 
one  kind  or  another,  whether  they  be  apparent  or  not. 

A  crime,  so  far  as  it  falls  within  the  cognizance  of 
human  tribunals,  is  generally,  with  the  exceptions 
already  pointed  out(^),  an  act  proceeding  from  a 
wicked  motive  [ry,  it  follows,  therefore,  that  in  every 
such  act  there  must  have  been  one  or  more  voluntary 
agents  ;  that  it  must  have  had  corresponding  rela- 
tions to  some  precise  moment  of  time  and  portion  of 
space  ;  that  there  must  have  existed  inducements  to 
guilt,  preparations  for,  and  objects  and  instruments 
of  crime  ;  these — the  acts  of  disguise,  flight,  or  con- 
cealment, the  possession  of  plunder  or  other  fruits 
of  crime,  and  innumerable  other  particulars  connected 
with  individual  conduct,  and  with  moral,  social,  and 
physical  relations — afford  materials  for  the  determina- 
tion of  the  judgment.  It  would  be  impracticable 
to  enumerate  the  infinite  variety  of  circumstantial 
evidentiary  facts,  which  of  necessity  are  as  various 

( q)  See  p.  28,  supra. 

(r)  The  author  here  and  elsewhere  uses  the  word  "motive"  to 
denote  two  things,  which  were  frequently  confused  until  Austin  in  his 
lectures  on  Jurisprudence  (Lects.  12,  18,  19)  taught  that  they  should 
be  distinguished,  namely,  motive  and  intention.  A  woman  steals  a 
loaf  to  save  her  own  life  and  that  of  her  starving  child.  The  motive^ 
preservation  of  self  and  offspring,  is  not  wrong  ;  it  is  the  inte/ition  to 
take,  without  lawful  justification,  the  property  of  another  which  makes 
the  act  criminal.  The  author  has  defined  the  word  motive  correctly 
at  p.  48.     Cf.  p.  214-5,  infra. 


46  CIRCUMSTANTIAL    EVIDENCE. 

as  the  modificcitions  and  combinations  of  events  in 
actual  life.  "  All  the  acts  of  the  party,  all  things 
that  explain  or  throw  light  on  these  acts,  all  the  acts 
of  others  relative  to  the  affair,  that  come  to  his  know- 
ledge and  may  influence  him  ;  his  friendships  and 
enmities,  his  promises,  his  threats,  the  truth  of  his 
discourses,  the  falsehood  of  his  apologies,  pretences, 
and  explanations  ;  his  looks,  his  speech,  his  silence 
where  he  was  called  to  speak  ;  everything  which 
tends  to  establish  the  connection  between  all  these 
particulars  ; — every  circumstance,  precedent,  con- 
comitant, and  subsequent,  become  parts  of  circum- 
stantial evidence.  These  are  in  their  matter  infinite, 
and  cannot  be  comprehended  within  any  rule,  or 
brought  under  any  classification  "  {s). 

Evidentiary  facts  of  a  circumstantial  nature  are 
susceptible  only  of  a  very  general  arrangement,  into 
two  classes  ;  namely,  moral  indications,  afforded  by 
the  relations,  and  language  and  conduct  of  the  party  ; 
and,  secondly,  facts  which  are  apparently  extrinsic 
and  mechanical,  and  independent  of  moral  conduct 
and  demeanour  :  and  each  of  these  classes  may  be 
further  considered,  as  such  facts  are  inculpatory  or 
exculpatory.  But  this  division  is  grounded  upon  the 
apparent  rather  than  the  real  qualities  of  actions, 
and  cannot  be  regarded  as  strictly  accurate  ;  since 
all  the  actions  of  a  rational  agent  are  prompted  by 
motives,  and  are  therefore  really  moral  indications, 
though  it  may  not  be  always  practicable  to  develop 
their  moral  relations. 

(s)  Burke's  Works.     For  reference  see  p.  25,  supra.    See  p.  400  of 
the  edition  there  cited. 


AMERICAN    NOTES 

[Note  to  Chapter  II.] 

Characteristics  of  Circjutistantial  Evidence. 

Circumstantial  evidence  is  evidence  of  facts  from  which  the  exist- 
ence of  other  facts  may  be  inferred.    People  v.  Harris,  136  N.  Y.  423. 

It  is  admissible  both  in  civil  and  in  criminal  cases,  and  some- 
times is  the  most  convincing  that  can  be  had.  People  v.  Videto, 
I  Park.  (N.  Y.)  603 ;  People  v.  Davis,  46  N.  Y.  St.  R.  213,  9  N.  Y. 
Crim.  334;  affirmed,  on  opinion  below,  in  135  N.  Y.  646. 

It  is  not  error  to  refuse  to  charge  that  direct  evidence  is  always 
the  most  satisfactory.  People  v.  Johnson,  140  N.  Y.  350,  55  N.  Y. 
St.  R.  783. 

In  order  to  convict  on  circumstantial  evidence,  the  facts  must 
be  such  as  to  exclude  every  reasonable  hypothesis  except  that  of 
guilt ;  the  jury  must  have  no  reasonable  doubt  of  the  essential  facts. 
Lovvenstein's  Trial,  p.  330  ;  Stephens  v.  People,  4  Park.  396  ; 
affirmed  in  19  N.  Y.  549;  People  v.  Harris,  136  N.  Y.  423,  49 
N.  Y.  St.  R.  751  ;  People  v.  Kelly,  11  App.  Div.  495  ;  appeal  dis- 
missed in  153  N.  Y.  651  ;  People  v.  Fitzgerald,  156  N.  Y.  253 
(reversing  20  App.  Div.  139),  46  N.  Y.  Supp.  1020. 

A  nonsuit  cannot  be  ordered  on  the  ground  that  all  the  evidence 
is  circumstantial.  Ross  v.  New  York,  4  Rob.  (N.  Y.)49.  See  also 
People  V.  Cassm,  42  N.  Y.  St.  R.  133  ;  affirmed,  on  opinion  below, 
in  136  N.  Y.  633  ;  People  v.  Hamilton,  137  N.  Y.  531,  50  N.  Y. 
St.  R.  22. 

"  In  trials  of  fact,  it  will  generally  be  found  that  ihe  factum  pro- 
bandum  is  either  directly  attested  by  those  who  speak  from  their 
own  actual  and  personal  knowledge  of  its  existence,  or  it  is  to  be 
inferred  from  other  facts,  satisfactorily  proved.  In  the  former  case, 
the  truth  rests  upon  the  second  ground  before  mentioned,  namely, 
our  faith  in  human  veracity,  sanctioned  by  experience.  In  the  latter 
case,  it  rests  on  the  same  ground  with  the  addition  of  the  experi- 
enced connection  between  the  collateral  facts  thus  proved  and  the 


^Glf  AMERICAN   NOTES. 

fact  wlucli  is  in  controversy  ;  constituting  the  third  basis  of  evidence 
before  stated. 

"The  facts  proved  arc  in  both  cases  directly  attested.  In  the 
former  case,  tiie  proof  apphes  ininicdiately  to  \\\^  factum  proban- 
(ium,  witliout  any  intervening  process,  and  it  is  therefore  called 
direct  or /(wV/rr  testimony.  In  the  latter  case,  as  the  proof  ap- 
plies immediately  to  collateral  facts,  supposed  to  have  a  connec- 
tion, near  or  remote,  with  the  fact  in  controversy,  it  is  termed 
circumstantial :  and  sometimes,  but  not  with  entire  accuracy, 
presumptive.'^     Greenleaf  on  Evid.  §    13. 

That  much  testimonial  evidence  involves  the  same  sort  of  infer- 
ences as  does  circumstantial  is  thus  illustrated  by  Chief  Justice 
Gibson  in  Com.  v.  Harman,  6  Am.  Law  Journal,  123.  "You  see 
a  man  discharge  a  gun  at  another  ;  you  see  the  Hash,  you  hear 
the  report,  you  see  the  person  fall  a  lifeless  corpse  ;  and  you  infer 
from  all  these  circumstances  that  there  was  a  ball  discharged  from 
the  gun,  which  entered  his  body  and  caused  his  death,  because 
such  is  the  usual  and  natural  cause  of  such  an  effect.  But  you 
did  not  see  the  ball  leave  the  gun,  pass  through  the  air,  and  enter 
the  body  of  the  slain,  and  your  testimony  to  the  fact  of  killing  is, 
therefore,  only  inferential,  —  in  other  words,  circumstantial.  It  is 
possible  that  no  ball  was  in  the  gun  ;  and  we  infer  that  there 
was,  only  because  we  cannot  account  for  the  death  on  any  other 
supposition." 

Direct  evidence  is  not  required  to  prove  adultery  ;  circumstan- 
tial evidence  will  be  sufficient  if  the  opportunity  and  the  will  to 
commit  the  crime  are  established.  Berckmans  v.  Berckmans,  16 
N.  J.  Eq.  122,  17  N.  J.  Eq.  453;  Day  v.  Day,  4  N.  J.  Eq.  444; 
Adams  v.  Adams,  17  N.  J.  Eq.  324. 

Presumptions. 

"I  use  the  word  'presumption'  in  the  sense  of  a  presumption 
of  law  cai)able  of  being  rebutted.  A  presumption  of  fact  is  simply 
an  argument.  A  conclusive  presumption  I  describe  as  conclusive 
proof."     Stephen's  Dig.  Evid.,  Appendix,  Note  i. 

"A  'presumption'  means  a  rule  of  law  that  courts  and  judges 
shall  draw  a  particular  inference  from  a  particular  fact,  or  from 
particular  evidence,  unless  and  until  the  truth  of  such  inference  is 
disproved."     Stephen's  Dig.  Evid.  Art.  i. 


AMERICAN   NOTES.  46  C 

"  Fresumptioji  "  defined.  —  "  The  term  '  presumjnion '  is  used  to 
signify  tliat  wliich  may  be  assumed  without  proof,  or  taken  for 
granted."     Ward  v.  Metropolitan   Life  Ins.  Co.,  66  Conn.  238. 

The  conclusion  or  probable  inference  drawn  in  f:u'or  of  the 
existence  of  one  fact  from  others  in  proof  is  a  legal  presumption. 
Tanner  v.  Hughes,  53  Pa.  St.  (P.  F.  Smith)  289  ;  U.  S.  v.  Searcey 
(D.  C),  26  Fed.  Rep.  435. 

"  A  presumption,  or  a  i)robability,  —  for  in  this  connection  these 
words  mean  the  same  thing,  —  is  an  inference  as  to  the  existence 
or  non-existence  of  one  fact  from  the  existence  or  non-existence 
of  some  other  fact,  founded  on  a  previous  experience  of  that  con- 
nection."    Fay  V.  Reynolds,  60  Conn.  220. 

Conclusive  Frcsiimptions. 

"Conclusive,  or,  as  they  are  elsewhere  termed,  imperative,  or 
absolute  presumptions  of  law,  are  rules  determining  the  quantity  of 
evidence  requisite  for  the  support  of  any  particular  averment  which 
is  not  permitted  to  be  overcome  by  any  proof  that  the  fact  is 
otherwise."     Greenleaf  on  Evid.  §    15. 

"  A  sane  man  is  conclusively  presumed  to  contemplate  the 
natural  and  probable  consequences  of  his  own  acts  ;  and  therefore 
the  intent  to  murder  is  conclusively  inferred  from  the  deliberate 
use  of  a  deadly  weapon."     Greenleaf  on  Evid.   §   18. 

Pnstonptions  of  Law. 

"  Presumptions  of  law  consist  of  those  rules  which  in  certain 
cases  either  forbid  or  dispense  v/ith  any  ulterior  inquiry."  Green- 
leaf on  Evid.   §   15. 

Presumptions  of  Fact. 

"  Presumptions  of  fact,  usually  treated  as  comprising  the  second 
general  head  of  presumptive  evidence,  can  hardly  be  said,  with 
propriety,  to  belong  to  this  branch  of  the  law.  They  are,  in  truth, 
but  mere  arguments,  of  which  the  major  premise  is  not  a  rule  of 
law ;  they  belong  equally  to  any  and  every  subject  matter,  and 
are  to  be  judged  by  the  common  and  received  tests  of  the  truth 
of  propositions  and  the  validity  of  arguments.  They  depend 
upon  their  own  natural  force  and  efificacy  in  generating  belief  or 
conviction  in  the  mind,  as  derived  from  those  connections,  which 


461/  AMERICAN  NOTES. 

are  shown  by  experience,  irrespective  of  any  legal  relations.  They 
differ  from  presumi)tions  of  law  in  this  essential  respect,  that  while 
those  are  reduced  to  fixed  rules,  and  constitute  a  branch  of  the 
particular  system  of  jurisprudence  to  which  they  belong,  tliese 
merely  natural  presumptions  are  derived  wholly  and  directly  from 
the  circumstances  of  the  particular  case,  by  means  of  the  common 
experience  of  mankind,  without  the  aid  or  control  of  any  rules  of 
law  whatever."     Clreenleaf  on  Evid.  §  44. 

"  Natural  presumption  is  that  process  of  reasoning  which  the 
mind  of  any  person  of  ordinary  intelligence  is  competent  to  exer- 
cise, and  which  it  naturally  will  and  constantly  does  exercise  in 
arriving  at  the  belief  of  the  truth  of  any  desired  fact  by  the  aid  or 
through  the  medium  of  one  or  more  other  facts.  The  reasoning 
employed  is  of  the  description  known  as  probable,  and  it  is 
founded  on  the  ordinary  and  usual  course  of  things  according  to 
which,  the  fact  known  and  the  fact  sought,  or  facts  of  the  same 
character,  have  been  previously  known,  observed,  or  understood 
to  be  in  some  way  connected  together."     Burrill  on  Cir.  Evid.  ix. 

In  homicide  cases  the  presumption  of  malice  arises  from  the 
use  of  a  deadly  weapon.     Mitchell  v.  State  (Ala.),  30  So.  348. 

There  is  a  presumption  that  he  who  breaks  and  enters  a  house 
of  another  in  the  night  intends  to  steal  therein.  State  7'.  Worthen 
(Iowa),  82  N.  VV.  910. 

The  conclusion  or  probable  inference  drawn  in  favor  of  the 
existence  of  one  fact  from  others  in  proof  is  a  legal  presumption. 
Tanner  v.  Hughes,  53  Pa.  St.  289. 

Presiimptio7i   Created  by  Statute. 

A  presumption  may  be  created  by  legislative  act  even  though 
the  cause  of  action  arose  out  of  the  State.  It  is  a  matter  affecting 
the  remedy.  Penn.  Co.  v.  McCann,  54  Ohio  St.  10;  State  v. 
Weston,  3  Low.   (Ohio)   Dec.   15,  i   Nisi  Prius,  350. 

Congress  may  create  a  presumption  {e.  g.,  of  negligence  from 
the  bursting  of  a  boiler).  Such  presumption  will  prevail  in  both 
State  and  Federal  courts  if  it  refers  to  a  matter  within  the  jurisdic- 
tion of  Congress.  Murphy  v.  Northern  Transportation  Co.,  15 
Ohio  St.  533. 

A  disputable  presumption  may  be  lawfully  created  by  statute. 
Howard  v.  Moot,  64  N.  Y.   268. 


AMERICAN  NOTES.  46  e 

Direct  afid  Circumstantial  Evidence  Compared. 

As  good  a  comparison  between  the  two  kinds  of  evidence  as  can 
be  cited  is  that  of  Chief  Justice  Shaw.  "  The  distinction,  then, 
between  direct  and  circumstantial  evidence  is  this.  Direct  or 
positive  evidence  is  when  a  witness  can  be  called  to  testify  to  the 
precise  fact  which  is  the  subject  of  the  issue  on  trial ;  that  is,  in  a 
case  of  homicide,  that  the  party  accused  did  cause  the  death  ot 
the  deceased.  Whatever  may  be  the  kind  or  force  of  the  evi- 
dence, this  is  the  fact  to  be  proved.  But  suppose  no  person  was 
present  on  the  occasion  of  the  death,  and,  of  course,  that  no  one 
can  be  called  to  testify  to  it ;  is  it  wholly  unsusceptible  of  legal 
proof?  Experience  has  shown  that  circumstantial  evidence  may  be 
offered  in  such  a  case  ;  that  is,  that  a  body  of  facts  may  be  proved 
of  so  conclusive  a  character  as  to  warrant  a  firm  belief  of  the  fact, 
quite  as  strong  and  certain  as  that  on  which  discreet  men  are 
accustomed  to  act,  and  in  relation  to  their  most  important  con- 
cerns. It  would  be  injurious  to  the  best  interests  of  society  if 
such  proof  could  not  avail  in  judicial  proceedings.  If  it  was 
necessary  always  to  have  positive  evidence,  how  many  criminal 
acts  committed  in  the  community,  destructive  of  its  peace  and 
subversive  of  its  order  and  security,  would  go  wholly  undetected 
and  unpunished? 

"The  necessity,  therefore,  of  resorting  to  circumstantial  evi- 
dence, if  it  is  a  safe  and  reliable  proceeding,  is  obvious  and  abso- 
lute. Crimes  are  secret.  Most  men  conscious  of  criminal  pur- 
poses, and  about  the  execution  of  criminal  acts,  seek  the  security 
of  secrecy  and  darkness.  It  is  therefore  necessary  to  use  all 
other  modes  of  evidence  beside  that  of  direct  testimony,  provided 
such  proofs  may  be  relied  on  as  leading  to  safe  and  satisfactory 
conclusions ;  and,  thanks  to  a  beneficent  Providence,  the  laws  of 
nature  and  the  relations  of  things  to  each  other  are  so  linked  and 
combined  together  that  a  medium  of  proof  is  often  thereby  fur- 
nished, leading  to  inferences  and  conclusions  as  strong  as  those 
rising  from  direct  testimony. 

"  On  this  subject  I  will  once  more  ask  attention  to  a  remark  in 
the  work  already  cited.  East's  Pleas  of  the  Crown,  ch.  5,  §  11. 
'  Perhaps,'  he  says,  '  strong  circumstantial  evidence,  in  cases  of 
crimes  like  this  committed  in  the  most  part  in  secret,  is  the  most 


46/  AMERICAN   NOTES. 

satisfactory  of  any  from  whence  to  draw  tlic  conclusion  of  guilt; 
for  men  may  be  scducctl  to  j^erjury  by  many  base  motives,  to  which 
the  secret  nature  of  the  offence  may  sometimes  afford  a  temp- 
tation ;  but  it  can  scarcely  happen  tlint  many  circumstances,  espe- 
cially if  they  be  such  over  which  the  accuser  could  have  no  control, 
forming  together  the  links  of  a  transaction,  should  all  unfortunately 
concur  to  fix  the  presumption  of  guik  un  an  individual  and  yet  sucii 
a  conclusion  be  erroneous.' 

"  Each  of  these  modes  of  i)roof  has  its  advantages  and  dis- 
advantages; it  is  not  easy  to  compare  their  relative  value.  The 
advantage  of  positive  evidence  is  that  it  is  the  direct  testimony  of 
a  witness  to  the  fact  to  be  proved,  who,  if  he  speaks  the  truth,  saw 
it  done  ;  and  the  only  question  is,  whether  he  is  entitled  to  be 
believed.  The  disadvantage  is,  that  the  witness  may  be  false  and 
corrupt,  and  that  the  case  may  not  afford  the  means  of  detecting 
his  falsehood. 

"  But,  in  a  case  of  circumstantial  evidence,  where  no  witness  can 
testify  directly  to  the  fact  to  be  proved,  it  is  arrived  at  by  a  series 
of  other  facts,  which  by  experience  have  been  found  so  associated 
with  the  fact  in  question  that  in  the  relation  of  cause  and  effect 
they  lead  to  a  satisfactory  and  certain  conclusion  ;  as  when  foot- 
prints are  discovered  after  a  recent  snow,  it  is  certain  that  some 
animated  being  has  passed  over  the  snow  since  it  fell ;  and,  from 
the  form  and  number  of  the  footprints,  it  can  be  determined  with 
equal  certainty  whether  they  are  those  of  a  man,  a  bird,  or  a 
quadruped.  Circumstantial  evidence,  therefore,  is  founded  on  ex- 
perience and  observed  facts  and  coincidences,  establishing  a  con- 
nection between  the  known  and  proved  facts  and  the  fact  sought  to 
be  proved.  The  advantages  are  that,  as  the  evidence  commonly 
comes  from  several  witnesses  and  different  sources,  a  chain  of  cir- 
cumstances is  less  likely  to  be  falsely  prepared  and  arranged,  and 
falsehood  and  perjury  are  more  likely  to  be  detected  and  fail  of 
their  purpose.  The  disadvantages  are  that  a  jury  has  not  only  to 
weigh  the  evidence  of  facts,  but  to  draw  just  conclusions  from 
them  ;  in  doing  which,  they  may  be  led,  by  prejudice  or  partiality, 
or  by  want  of  due  deliberation  and  sobriety  of  judgment,  to  make 
hasty  and  false  deductions  ;  a  source  of  error  not  existing  in  the 
consideration  of  positive  evidence. 

"  From  this  view  it  is  manifest  that  great  care  and  caution  oudit 


AMERICAN   NOTES.  46^ 

to  be  used  in  drawing  inferences  from  proved  facts.  It  must  be  a 
fair  and  natural,  and  not  a  forced  and  artificial,  conclusion  ;  as, 
when  a  house  is  found  to  have  been  plundered,  and  there  are 
indications  of  force  and  violence  upon  the  windows  and  shutters, 
the  inference  is  that  the  house  was  broken  open,  and  that  the  per- 
son who  broke  open  the  house  plundered  the  property.  It  has 
sometimes  been  enacted  by  positive  law  that  certain  facts  proved 
shall  be  lield  to  be  evidence  of  another  fact ;  where  it  is  pro- 
vided by  statute  that  if  the  mother  of  a  bastard  child  gives  no 
notice  of  its  expected  birth  and  is  delivered  in  secret,  and  after- 
wards is  found  with  the  child  dead,  it  shall  be  presumed  that  it  was 
born  alive  and  that  she  killed  it.  This  is  a  forced  and  not  a  nat- 
ural presumption  prescribed  by  positive  law,  and  not  conformable 
to  the  rule  of  the  common  law.  The  common  law  appeals  to  the 
plain  dictates  of  common  experience  and  sound  judgment,  and  the 
inference  to  be  drawn  from  the  fact  must  be  a  reasonable  and  natural 
one,  and,  to  be  a  moral  certainty,  a  certain  one.  It  is  not  sufificient 
that  it  is  probable  only  ;  it  must  be  reasonably  and  morally  certain. 

"  The  next  consideration  is,  that  each  fact  which  is  necessary  to 
the  conclusion  must  be  distinctly  and  independently  proved  by 
competent  evidence.  I  say,  every  fact  necessary  to  the  conclu- 
sion ;  because  it  may  and  often  does  happen  that,  in  making  out 
a  case  on  circumstantial  evidence,  many  facts  are  given  in  evi- 
dence, not  because  they  are  necessary  to  the  conclusion  sought 
to  be  proved,  but  to  show  that  they  are  consistent  with  it  and  not 
repugnant,  and  go  to  rebut  any  contrary  presumption."  Com.  v. 
Webster,  5  Cush.  295,  310. 

The  testimony  of  a  person  as  to  his  own  signature  is  of  no 
higher  character  than  the  testimony  of  another  who  is  acquainted 
with  his  handwriting.     Lefferts  v.  State,  49  N.  J.  L.  26. 

Circumstantial  evidence  has  frequently  been  used  to  discredit 
the  direct  evidence  of  witnesses,  and  in  many  cases  has  entirely 
overcome  the  weight  of  the  direct  evidence.  See  Nelson  v. 
U.S.  Fed.  Cas.  10116,  where  a  vessel  and  cargo  were  forfeited 
for  breach  of  the  importation  laws,  notwithstanding  the  positive 
evidence  of  several  witnesses. 

Circumstantial  evidence  may  be  equally  as  convincing  as  is 
direct  testimony,  and  in  such  case  the  law  gives  it  as  much  weight. 
Noughon  V.  State,  57  Ga.  102. 


46//  AMERICAN   NOTES. 

Circumstantial  evidence  is  said  to  he  as  good  as  any  otlier  in 
West  7'.  State.  76  Ala.  9S  ;  Lancaster  v.  State,  91  Tenn.  267  ;  Cur- 
fan  7'.  Perceval,  21  Neb.  434. 

Direct  FA'idence  Preferred. 

In  Rest  on  Presumptions,  §  193,  it  is  said,  "  Abstractly  speaking, 
presumptive  evidence  is  inferior  to  direct  evidence,  seeing  that  it 
is,  in  truth,  only  a  substitute  for  it,  and  an  indirect  mode  of  prov- 
ing that  which   otherwise  could  not  be  proved  at  all." 

"  The  precedence  of  the  former  (direct  evidence),  therefore, 
rests  on  grounds  of  natural  propriety  and  reason,  too  obvious  to  be 
dwelt  upon  ;  and  it  is  a  precedence  which  the  rules  of  evidence 
themselves  constantly  recognize.  Where  direct  evidence  is  attain- 
able, circumstantial  evidence  is  of  a  secondary  nature  ;  and  no 
greater  discredit  can  be  thrown  upon  the  latter,  even  in  civil  cases, 
than  where  it  is  attempted  to  be  used  in  cases  where  (he  former, 
if  attainable,  is  wilfully  withheld."  Burrill  on  Circumstantial 
Evid.  225. 

In  Ingalls  v.  State,  48  Wis.  647,  holding  that  intoxication  may 
be  proved  to  show  the  improbability  of  defendant's  having  com- 
mitted a  crime,  it  is  said,  "  Evidence  of  this  kind  would  have  but 
little  weight  against  direct  evidence  showing  the  actual  presence  of 
the  accused  at  the  time  and  place  when  and  where  the  crime  was 
committed." 

Disthictions  likely  to    Confuse  the  Jury. 

It  is  very  generally  maintained  that  the  jury  should  not  be  given 
any  instructions  whatever  distinguishing  between  circumstantial 
and  direct  evidence  in  regard  to  the  weight  to  which  they  are 
entitled.  In  State  v.  Rome,  64  Conn.  329,  the  Court  says: 
"  The  conclusion  reached  that,  for  the  practical  purposes  of  a  trial, 
an  attempt  in  instructions  to  juries  to  classify  evidence  as  direct 
and  circumstantial,  making  different  rules  as  applicable  to  each, 
would  serve  'only  to  confuse  and  divert  the  minds  of  the  jury  from 
the  single  legitimate  question  —  does  the  evidence  in  this  case 
satisfy  you  of  the  guilt  of  the  accused,  beyond  any  reasonable 
doubt  ?  '  —  is  sound." 

And  see  the  instructions  of  the  trial  court  quoted  at  length  and 


AMERICAN   NOTES.  46  / 

approved   in  this  case,   and  also  approved  in  State  v.   Kelly,  77 
Conn.  266. 

The  court  should  not  instruct  the  jury  that  circumstantial  evi- 
dence is  inferior  to  direct.     Cook  v.  State  (iMiss),  28  So.  833. 

Bofh  Kinds  of  Evidence  Fallible  and  Both  Indispensalde. 

"  On  a  final  review  of  the  two  opinions  of  the  merits  of  circum- 
stantial evidence,  which  have  been  considered  in  the  present  chap- 
ter, it  will  be  seen  that  truth  occupies  the  portion  of  a  mean  between 
both.  The  character  of  the  two  species  of  evidence,  in  behalf  of 
which  they  have  respectively  been  advocated,  may  be  summed  up 
in  tiiC  single  remark,  that  while  both,  as  merely  human  instruments, 
are  confessedly  and  unavoidably  fallible,  both,  as  instruments  of 
justice,  are  nevertheless  indispensable."     Burrill  on  Cir.  Evid.  234. 

In  Com.  V.  Harman,  4  Pa.  296,  Chief  Justice  Gibson  says  : 
"  No  witness  has  been  produced  who  saw  the  act  committed  ;  and 
hence  it  is  argued  for  the  prisoner,  that  the  evidence  is  only  cir- 
cumstantial, and  consequently  entitled  to  a  very  inferior  degree  of 
credit,  if  to  any  credit  at  all.  But  that  consequence  does  not 
necessarily  follow.  Circumstantial  evidence  is,  in  the  abstract, 
nearly,  though  perhaps  not  altogether,  as  strong  as  positive  evi- 
dence ;  in  the  concrete  it  may  be  infinitely  stronger.  A  fact 
positively  sworn  to  by  a  single  eye-witness  of  blemished  character 
is  not  as  satisfactorily  proved  as  is  a  fact  which  is  the  necessary 
consequence  of  a  chain  of  other  facts  sworn  to  by  many  witnesses 
of  undoubted  credibility.  .  .  .  The  only  difference  between  pos- 
itive and  circumstantial  evidence  is,  that  the  former  is  more  im- 
mediate, and  has  fewer  links  in  the  chain  of  connection  between 
the  premises  and  conclusion  ;  but  there  may  be  perjury  in  both. 
A  man  may  as  well  swear  falsely  to  an  absolute  knowledge  of  a 
fact  as  to  a  number  of  facts  from  which,  if  true,  the  fact  on  which 
the  question  of  innocence  or  guilt  depends  must  inevitably  follow. 
No  human  testimony  is  superior  to  doubt.  The  machinery  of 
criminal  justice,  like  every  other  production  of  man,  is  necessarily 
imperfect,  but  you  are  not  therefore  to  stop  its  wheels.  Because 
men  have  been  scalded  to  death  or  torn  to  pieces  by  the  bursting 
of  boilers,  or  mangled  by  wheels  on  a  railroad,  you  are  not  to  lay 
aside  the  steam-engine.  Innocent  men  have  doubtless  been  con- 
victed and  executed  on  circumstantial  evidence,  but  innocent  men 


af^j  AMERICAN  NOTES. 

liavc  sometimes  been  convicted  and  executed  on  what  is  called 
positive  proof.  Wliat  then?  Such  convictions  are  accidents 
which  must  be  encountered,  and  the  innocent  victims  of  them  have 
perished  for  the  common  good,  as  much  as  soldiers  who  have  per- 
ished in  batde.  All  evidence  is  more  or  less  circumstantial,  the 
difference  l)eing  only  in  the  degree:  and  it  is  sufficient  for  the 
purpose  when  it  excludes  disbelief;  that  is,  actual  and  not  tech- 
nical disbelief,  for  he  who  is  to  pass  on  the  question  is  not  at  lib- 
erty to  disbelieve  as  a  juror  while  he  believes  as  a  man. 

"  It  is  enough  that  his  conscience  is  clear.  Certain  cases  of  cir- 
cumstantial proof  to  be  found  in  the  books,  in  which  innocent  per- 
sons were  convicted,  have  been  pressed  on  your  attention.  These, 
however,  are  few  in  number,  and  they  occurred  in  a  period  of  some 
hundreds  of  years,  in  a  country  whose  criminal  code  made  a  great 
variety  of  offences  capital.  The  wonder  is  that  there  have  not 
been  more.  They  are  constantly  resorted  to  in  capital  trials  to 
frighten  juries  into  a  belief  that  there  should  be  no  conviction  on 
merely  circumstantial  evidence.  But  the  law  exacts  a  conviction 
wherever  there  is  legal  evidence  to  show  the  prisoner's  guilt  be- 
yond a  reasonable  doubt ;  and  circumstantial  evidence  is  legal 
evidence-" 

For  opinion  upholding  the  use  of  circumstantial  evidence, 
maintaining  its  necessity  and  the  correctness  of  its  result,  and 
ridiculing  attacks  made  upon  it  as  being  due  to  either  ignorance 
or  vice,  see  Com.  v.  Twitchell,  i  Brewst.  (Pa.)  551;  Hickory 
V.  U.S.,  151  U.S.  303. 

"  The  eye  of  omniscience  can  alone  see  the  truth  in  all  cases  : 
circumstantial  evidence  is  there  out  of  the  question  ;  but  clothed 
as  we  are  with  the  infirmities  of  human  nature,  how  are  we  to  get 
at  the  truth  without  a  concatenation  of  circumstances  ?  Though 
in  human  judicature,  imperfect  as  it  must  necessarily  be,  it  some- 
times happens,  perhaps  in  the  course  of  one  hundred  years,  that  in 
a  few  solitary  instances,  owing  to  the  minute  and  curious  circum- 
stances which  sometimes  envelop  human  transactions,  error  has 
been  committed  from  a  reliance  on  circumstantial  evidence  ;  yet 
this  species  of  evidence,  in  the  opinion  of  all  those  who  are  most 
conversant  with  the  administration  of  justice  and  most  skilled  in 
judicial  proceedings,  is  much  more  satisfactory  than  the  testimony 
of  a  single  individual  who  swears  he  has  seen  a  fact  committed." 


AxMERICAN   NOTES.  46  k 

R.  V.  Thurtell,   2  Wheeler  Cr.  Cas.   461,  c^ted  with  approval  in 
People  V.  Cronin,  34  Cal.  203. 

Comparative  Liability  to  Error. 

As  to  the  comparative  liability  to  error  in  the  cases  of  circum- 
stantial and  direct  testimony,  the  Court  says,  in  People  v.  Videts, 
I  Parker  Crim.  603  :  "  Although  from  the  imperfection  and  uncer- 
tainty which  must  ever  exist  in  all  human  tribunals  in  vvhicli  inno- 
cent persons  have  been  convicted  on  presumptive  proof,  yet  from 
my  knowletlge  of  criminal  jurisprudence,  both  from  reading  and 
from  observation,  I  have  no  hesitation  in  expressing  the  opinion 
that  where  there  has  been  one  unjust  conviction  upon  circum- 
stantial evidence  alone,  there  may  have  been  three  innocent 
persons  condemned  upon  the  positive  testimony  of  perjured 
witnesses." 

Caution  Required. 

"  This  point  has  been  pressed  with  great  earnestness,  and  it  has 
been  insisted  with  much  zeal  that  the  verdict  is  without  any  suf- 
ficient testimony.  The  inconclusiveness  of  circumstantial  proof, 
and  the  danger  to  be  apprehended  from  convictions  upon  that 
species  of  evidence,  have  been  dwelt  upon  with  much  force. 

"  It  is  certainly  true  that  great  care  and  caution  should  be  used 
in  the  investigation  of  such  testimony.  This  is  true  also  of  every 
other  kind.  All  human  testimony  may  be  false.  Our  own  per- 
ceptions may  be  wrong ;  our  own  senses  may  deceive  us.  Whilst 
this  should  teach  us  caution  in  the  forming  of  our  opinions,  and 
deliberation  in  adopting  conclusions,  it  should  not  make  us  carry 
our  doubts  too  far,  because  we  should  thereby  be  rendered  unfit 
for  all  the  practical  duties  of  life.  Such  is  the  state  of  things  which 
surround  us  in  life,  that  in  all  which  concerns  ourselves  and  our 
highest  interest  we  are  compelled  to  act  upon  testimony,  and 
often  upon  that  testimony  which  circumstances  afford.  The  same 
rule  is  carried  into  judicial  proceedings.  Circumstantial  evidence 
has  been  received  in  every  age  of  the  common  law,  and  it  may  rise 
so  high  in  the  scale  of  belief  as  to  generate  full  conviction.  When 
after  due  caution  this  result  is  reached,  the  law  authorizes  its  min- 
isters to  act  upon  it."  McCann  v.  State,  13  Smedes  &  M.  (Miss.) 
471,  489. 


46  /  AMERICAN    NOTES. 

U/iitiie    Weight  to   Trivial  Facts. 

All  courts  agree  that  great  care  should  be  exercised  in  drawing 
inferences  from  circumstantial  evidence,  antl  there  may  be  some 
dangers  inciilent  to  it  that  do  not  exist  in  the  case  of  direct  testi- 
mony. In  Moore  v.  State,  2  Ohio  St.  500,  507,  tiie  Court  says: 
"  We  would  remark,  that  it  is  one  of  the  difficulties  necessarily 
attending  tiie  investigation  of  a  case  where  the  j^roof  is  not  pos- 
itive, but  has  to  be  drawn  from  a  chain  of  circumstances,  that  too 
much  stress  is  frecjuently  laid  on  trivial  circumstances,  when  sus- 
picion has  once  been  aroused  and  harsh  and  erroneous  conclusions 
frecjuently  tlrawn  against  the  accused.  And  a  careful  judge  will 
always  instruct  the  jury,  that,  where  the  circumstances  are  recon- 
cilable upon  the  theory  of  the  accused's  innocence,  they  are  bound 
so  to  treat  them.  It  is  only  when  the  facts  and  circumstances  are 
irreconcilable  with  his  innocence  that  he  can  be  convicted." 

Proof  of  Venue  by  Circumstantial  Evidence. 

Circumstantial  evidence  alone  may  be  sufficient  to  establish  the 
venue  of  a  crime.  Burst  %>.  State,  89  Ind.  133  ;  Weinecke  v. 
State,  34  Neb.  14  ;  Tinney  v.  State,  1 1 1  Ala.  74  ;  State  v.  Benson, 
22  Kan.  471;  State  v.  Hill,  98  Mo.  357;  Abrigo  v.  State,  29 
Tex.  App.  143.     But  see  Franklin  v.  State,  64  Tenn,  613. 

Proof  that  an  offence  was  committed  in  the  witness's  house 
and  that  the  house  is  in  a  certain  place  is  sufficient  proof  of  venue. 
Porter  v.  People,  158  111.  370. 

But  it  is  not  enough  to  show  that  the  owner  of  a  certain  saloon 
that  had  been  broken  into  lives  in  a  certain  place,  and  that  he  owns 
the  saloon  building.  The  venue  of  the  building  must  be  shown. 
Harlan  v.  State,  134  Ind.  339. 

No  presumption  that  a  homicide  occurred  in  a  certain  county  is 
raised  by  proof  that  the  inquest  was  held  there.  Dobson  v.  State, 
17  S.  W.  3. 

Sources  of  Circumstantial  Evidence. 

"  This  indirect  evidence  is  sometimes  drawn  from  the  expe- 
rience which  enables  us  to  trace  a  connection  between  an  ascer- 
tained collateral  fact  and  the  fact  otlierwise  undetermined  ;  and 
it  is  more  or  less  cogent  as  this  connection  is  known  to  be  more 


AMERICAN   NOTES.  46  171 

or  less  natural  and  frequent.  When  antecedent  experience  shows 
this  mutuality  of  relation  to  be  constant  or  with  a  great  degree 
of  uniformity,  the  inference  deducible,  it  is  said,  is  properly 
termed  a  presumption.  But  this  species  of  proof  embraces  a 
far  wider  scope  than  this.  It  in  fact  includes  all  evidence  of  an 
indirect  nature,  whether  the  inferences  afforded  by  it  be  drawn 
from  prior  experience  or  be  a  deduction  of  reason  from  the  cir- 
cumstances of  the  particular  case,  or  of  reason  aided  by  expe- 
rience. In  the  latter  aspect  is  a  conclusion  the  value  of  which 
obviously  depends  on  the  force  and  directness  with  which  it  is 
derived  from  the  premises  concealed  or  proved."  Stevenson  v. 
Stewart,  11   Pa.  308. 

Classification  of  Ctraifnstantial  Evidence. 

"The  relations  and  coincidences  of  facts  with  each  other,  from 
which  reasonable  inferences  may  be  drawn,  are  some  of  a  physical 
or  mechanical,  and  others  of  a  moral,  nature.  Of  the  former,  some 
are  so  decisive  as  to  leave  no  doubt ;  as,  where  human  footprints 
are  found  on  the  snow,  the  conclusion  is  certain  that  a  person  has 
passed  there  ;  because  we  know,  by  experience,  that  that  is  the 
mode  in  which  such  footprints  are  made.  A  man  is  found  dead, 
with  a  dagger-wound  in  his  breast ;  this  being  the  fact  proved, 
the  conclusion  is,  that  his  death  was  caused  by  that  wound,  be- 
cause we  know  that  it  is  an  adequate  cause  of  death,  and  no  other 
cause  is  apparent.  .  .  . 

"  These  are  cases  where  the  conclusion  is  drawn  from  known 
relations  and  coincidences  of  a  physical  character.  But  there  are 
those  of  a  moral  nature,  from  wnich  conclusions  may  as  legiti- 
mately be  drawn.  The  ordinary  feelings,  passions,  and  propensi- 
ties under  which  parties  act  are  facts  known  by  observation  and 
experience;  and  they  are  so  uniform  in  their  operation  that  a  con- 
clusion may  be  safely  drawn,  that  if  a  person  acts  in  a  particular 
manner  he  does  so  under  the  influence  of  a  particular  motive." 
Shaw,  C.  J.,  in  Com.  v.  Webster,  5  Cush.  295,  314. 

'•  A  third  basis  of  evidence  is  the  known  and  experienced  con- 
nection subsisting  between  collateral  facts  or  circumstances,  satis- 
factorily proved,  and  the  fact  in  controversy.  This  is  merely  the 
legal  application,  in  other  terms,  of  a  process  familiar  in  natural 
philosophy,  showing  the  truth  of  an  hypothesis  by  its  coincidence 


46  ;/  AMERICAN    NOTES. 

with  existing  phenomena.  The  connections  and  coincidences  to 
which  we  refer  may  be  either  physical  or  moral ;  and  the  knowl- 
edge of  them  is  derived  from  the  known  laws  of  matter  and  mo- 
tion, from  animal  instincts,  and  from  the  physical,  intellectual,  and 
moral  constitution  anil  habits  of  men.  Their  force  depends  on 
their  sufficiency  to  exclude  every  other  hypothesis  but  the  one 
under  consideration."     Greenleaf  on  Kvid.  i6  ed.  §  ii. 

Professor  Wigmore  classifies  circumstantial  evidence  by  first 
dividing  facta  probanda  into  three  groups  :  I.  A  Human  Act ; 
II.  A  Human  Quality,  Condition,  or  State;  III.  A  Fact  or  Con- 
dition of  External  Nature  ;  and  then  arranging  the  evidentiary 
facts  into  —  A.  Prospectant ;  B.  Concomitant ;  C.  Retrospectant. 
Under  A.  are  classified  Character,  Design,  Motive,  etc.,  pointing 
as  they  do  to  future  acts.  An  alibi  is  placed  under  B. ;  and  Con- 
sciousness of  Guilt  under  C,  since  from  it  a  past  act  is  to  be 
inferred.     Wigmore  on  Evidence,  §  43. 


CHAPTER    III. 

INCULPATORY    MORAL   INDICATIONS. 

Although,  for  reasons  which  have  been  explained, 
a  complete  enumeration  of  facts  as  invariably  con- 
joined with  authoritative  presumptions  would  be 
impracticable,  it  is  important,  in  illustration  of  the 
general  principles  which  determine  the  relevancy 
and  effect  of  circumstantial  evidence,  to  notice  some 
particulars  of  moral  conduct,  frequently  brought  to 
light  in  courts  of  criminal  jurisdiction,  which  are 
both  popularly  and  judicially  considered  as  leading 
to  important  and  well-grounded  presumptions 

These  circumstances  may  be  considered  under  the 
heads  of  motives  to  crime,  declarations  or  acts  indica- 
tive of  guilty  consciousness  or  intention,  preparations 
for  the  commission  of  crime,  possession  of  the  fruits 
of  crime,  refusal  to  account  for  appearances  of  sus- 
picion, or  unsatisfactory  explanations  of  such  appear- 
ances, evidence  indirectly  confessional,  the  suppression, 
destruction,  simulation,  and  fabrication  of  evidence, 
statutory  presumptions,  and  scientific  testimony. 

Section   i. 

motives  to  crime. 

As  there  must  pre-exist  a  motive  to  every  volun- 
tary action  of  a  rational  being,  it  is  proper  to 
comprise  in  the  class  of  moral  indications,  such 
particulars  of  external  relation  as  are  usually  observed 


48  INCULPATORY    MORAL    INDICATIONS. 

to  operate  as  inducements  to  the  commission  of 
crime,  as  well  as  such  indications  from  language  and 
conduct  as  mc^re  directly  and  unequivocally  manifest 
a  connection  between  the  deed  and  the  mind  of  the 
actor.  In  strictness  the  word  "motive,"  though 
popularly  applied  to  denote  the  objects  calculated 
to  act  on  the  mind,  ought  to  be  limited  to  the  desig- 
nation of  such  objects  only  as  have  actually  influenced 
the  will,  and  have  thus  been  the  efficient  causes  of 
moral  action. 

The  metaphorical  origin  of  this  word  has  given 
rise  to  serious  misconception  as  to  the  nature  of 
moral  and  legal  responsibility,  upon  which  it  is 
essential  that  our  conceptions  should  be  accurate. 
From  its  primary  application  to  material  force,  an 
imaginary  analogy  has  been  supposed  between  the 
action  of  moral  and  physical  agencies.  In  reality, 
however,  there  is  no  resemblance  between  the 
definite  constraint  of  mechanical  power  and  the 
influence  of  motives  on  the  self-oriijinatino-  will 
of  an  intelligent  and  free  agent.  Man  is  not  the 
passive  subject  of  necessity  or  chance  ;  nor  are  his 
moral  judgments  merely  the  abstractions  of  logic  : 
on  the  contrary,  he  is  endowed  with  instincts, 
passions,  and  affections,  and  above  all  with  reason, 
and  the  capacity  of  estimating  the  qualities  and 
tendencies  of  his  volitions  and  actions,  and  with  the 
power  of  choosing  from  among  the  various  induce- 
ments, emotional  and  rational,  which  are  presented 
to  him,  the  governing  principles  of  his  conduct  (a). 

{a)  6  Stewart's  collected  Works,  349  ;  Cousin,  Cours  de  I'Hist.  de 
la  Philosophic,  prem.  ser.  tome  4,  Le$on  xxiv. 


MOTIVES    TO    CRIME. 


49 


These  considerations  constitute  the  foundation  of 
moral  and  legal  responsibility  ;  and  it  follows  from 
them,  that  in  all  their  important  actions  we  naturally, 
reasonably,  and  safely  judge  of  men's  motives  by 
their  conduct,  as  we  conclude  from  the  nature  of  the 
stream  the  qualities  of  its  source.  It  is  indispensable, 
therefore,  in  the  investigation  of  imputed  guilt  to 
look  at  all  the  surrounding  circumstances  which  con- 
nect the  actor  with  other  persons  and  things,  and  may 
have  operated  as  motives  and  influenced  his  actions. 

The  common  inducements  to  crime  are,  the  desire 
of  revenofingf  some  real  or  fancied  wrono- ;  of  cfettinof 
rid  of  a  rival  or  an  obnoxious  connection  ;  of  escap- 
ing from  the  pressure  of  pecuniary  or  other  obli- 
gation or  burden  ;  of  obtaining  plunder  or  other 
coveted  object ;  of  preserving  reputation,  either  that 
of  general  character  or  the  conventional  reputation 
of  profession  or  sex  ;  or  of  gratifying  some  other 
selfish  or  malignant  passion.  But  it  is  of  the  essence 
of  moral  weakness  that  it  forms  a  mistaken  estimate 
of  present  good,  and  a  want  of  proportion  will  there- 
fore of  necessity  be  found  between  the  objects  of 
desire  and  the  means  employed  to  obtain  them.  The 
assassin's  dagger  may  be  put  in  requisition  for  a  few 
pieces  of  gold,  and  the  difference  between  that  and 
other  inducements  to  crime  is  a  difference  only  of 
degree.  In  a  sense  indeed,  and  tried  by  the  standard 
of  absolute  morality,  there  can  be  no  such  thing  as 
an  adequate  motive  to  the  commission  of  crime. 

It  is  always  a  satisfactory  circumstance  of  cor- 
roboration when,  in  connection  with  convincing  facts 

C.E.  E 


50  INCULPATORY    MORAL    INDICATIONS. 

of  coiKluct,  an  apj)arcnt  motive  can  be  assigned  ; 
hut,  as  the  operations  of  the  mind  are  invisible  and 
intanL^il)le,  it  is  impossible  to  g"o  further;  and  it 
must  be  remembered  that  there  may  be  motives 
which  no  human  being  but  the  party  himself  can 
divine.  Nor  must  undue  importance  be  attached 
to  external  circumstances  supposed  to  be  indicative 
of  g'lilty  motive,  for  there  are  fttw  men  to  whom 
some  or  other  of  the  forms  of  crime  may  not 
apparently  prove  advantageous.  Neither  ought  the 
existence  of  such  apparent  inducements  to  supersede 
the  necessity  for  the  same  amount  of  proof  as  would 
be  deemed  necessary  in  the  absence  of  all  evidence 
of  such  a  stimulus.  Suspicion,  too  readily  excited  by 
the  appearance  of  supposed  inducement,  is  incom- 
patible with  that  even  and  unprejudiced  state  of 
mind  which  is  indispensable  to  the  formation  of 
correct  and  sober  judgment.  While  true  it  is,  that 
frequently  "  imputation  and  strong  circumstances 
.  .  .  lead  directly  to  the  door  of  truth,"  it  is  equally 
true  that  entirely  to  penetrate  the  mind  of  man  is 
out  of  human  power,  and  that  circumstances  which 
apparently  have  presented  powerful  motives,  may 
never  have  acted  as  such.  Who  can  say  that  some 
"  uncleanly  apprehension,"  some  transient  thought 
of  sinister  aspect,  in  the  dimness  of  moral  light 
momentarily  mistaken  for  good,  may  not  floac  un- 
bidden across  the  purest  mind  ?  And  how  often 
is  it  that  man  has  no  control  over  circumstances 
of  apparent  power  over  his  motives  .'* 

It    follows    from    the    foregoing    remarks,     that 
evidence   of  collateral   facts  which   may  appear  to 


MOTIVES    TO    CRIME.  5I 

have  presented  a  motive  for  a  particular  action  de- 
serves pel"  se  no  weight.  With  motives  merely, 
the   legislator  and  the  magistrate   have  nothing  to 

do  ;    ACTIONS,  AS  THE  OBJECTS  OR  RESULTS  OF  MOTIVES, 

are  the  only  legitimately  cognizable  subjects  of  human 
laws.  Actus  11071  facit  reiim  nisi  mens  sit  rea,  is  a 
maxim  of  reason  and  justice  not  less  than  of  positive 
law  (d).  Motives  and  their  objects  differ,  it  has  been 
remarked,  as  the  springs  and  wheels  of  a  watch  differ 
from  the  pointing  of  the  hour,  being  mutually  related 
in  like  manner  {c).  But  such  evidence  is  most 
pertinent  and  important  when  clearly  connected  with 
declarations  which  demonstrate  that  the  particular 
motive  has  passed  into  action,  or  with  inculpatory 
moral  facts  which  it  tends  to  explain  and  co-ordinate, 
and  which  would  otherwise  be  inexplicable. 

The  particulars  of  external  relation  and  moral 
conduct  will  in  general  correctly  indicate  the 
character  of  the  motive  in  which  they  have 
originated.  On  the  other  hand,  the  entire  absence 
of  surrounding  circumstances,  which  on  the  ordinary 
principles  of  human  nature  may  reasonably  be  sup- 
posed to  have  acted  as  an  inducing  cause,  is  justly 
regarded,  whenever  upon  the  general  evidence  the 
imputed  guilt  is  doubtful,  as  affording  a  strong  pre- 
sumption of  innocence. 

It   occasionally    happens    that    actions    of    great 

{b)  3  Inst.  107.  For  a  discussion  of  the  meaning  and  extent  of  this 
maxim,  see  Reg.  v.  Tolsoft,  23  Q.  B.  D.  168.  See  Uifra,  pp.  1 3 1  - 1 36.  As 
to  the  use  of  the  word  motive  in  this  passage,  see  note  at  p.  45,  supra. 

{f)  Hampden's  Lectures  on  Moral  Philosophy,  241. 

E    2 


52  INCULPATORY    MORAL    INDICATIONS. 

enormity  are  committed,  for  wliich  no  apparent 
motive  is  discoveraMe.  It  must  not  be  concluded, 
however,  that  no  pre-existent  motive  has  operated  ; 
and  upon  principles  of  reason  and  justice  essential 
to  common  security,  the  actor  is  held  to  be  legally 
accountable  for  his  actions,  unless  it  be  clearly  and 
indubitably  shown  that  he  is  bereft  of  reason  and 
moral  power.  A  sense  of  injury,  and  long-cherished 
feelings  of  resentment,  may  ultimately  induce  a 
state  of  mind  independent  of  self-restraint,  and 
render  their  victim  the  sport  of  ungovernable  im- 
pulses of  passion  [d)  ;  but  the  distinction  is  evident 
and  just  between  such  actions  as  are  the  conse- 
quences of  a  voluntary  abdication  of  moral  control, 
and  actions  committed  under  the  over-mastering 
power  of  a  delusion  of  the  imagination,  which, 
though  groundless,  operates  upon  the  mind  with 
all  the  force  of  reality  and  necessity  (e). 

On  a  trial  for  murder.  Lord  Chief  Justice  Camp- 
bell thus  summed  up  the  doctrine  under  discussion  : 
"  With  respect  to  the  alleged  motive,  it  is  of  great 
importance  to  see  whether  there  was  a  motive  for 
committing  such  a  crime,  or  whether  there  was  not ; 
or  whether  there  is  an  improbability  of  its  having 
been  committed  so  strong  as  not  to  be  overpowered 

{d)  Rex  V.  Earl  Ferrers,  ig  St.  Tr.  885.  If  the  confession  of 
Constance  Kent  (_Ann.  Reg.  1865,  p.  230)  be  accepted,  Jier  only  motive 
for  the  dehberate  murder  of  her  infant  half-brother  was  a  desire  to 
revenge  some  slighting  remarks  made  by  her  stepmother  as  to  the 
first  family.  She  acknowledged  that  she  had  received  the  greatest 
kindness  from  her  stepmother. 

(<?)  Rexv.  Hadjidd,  27  St.  Tr.  12S1  ;  Rex  v.  Margin,  York  Sp.  Ass. 
1831,  Shorthand  Report  by  Fraser  ;  Rexv.  Offord^  5  C.  &  P.  168. 


MOTIVES    TO    CRIME.  53 

by  positive  evidence.  But  if  there  be  any  motive 
which  can  be  assigned,  I  am  bound  to  tell  you 
that  the  adequacy  of  that  motive  is  of  little  im- 
portance. We  know,  from  the  experience  of  criminal 
courts,  that  atrocious  crimes  of  this  sort  have  been 
committed  from  very  slight  motives  ;  not  merely 
from  malice  and  revenge,  but  to  gain  a  small 
pecuniary  advantage,  and  to  drive  off  for  a  time 
pressing  difficulties  "  (y^). 

It  is  a  general  rule  for  the  interpretation  of 
conduct  as  indicative  of  motives,  demanded  by 
social  security  and  founded  in  substantial  justice, 
that  every  man  shall  be  held  to  have  intended,  and 
therefore  to  be  legally  accountable  for,  the  natural 
and  probable  consequences  of  his  actions  [g-)  ;  and 
no  one  can  be  permitted  to  speculate  with  impunity 
upon  the  precise  extent  to  which  he  may  securely 
carry  his  mischievous  intentions,  the  reality  and 
degree  of  which  it  is  alike  impossible  to  determine. 
If  therefore  the  motive  have  been  to  commit,  not 
the  particular  crime,  but  another  of  equal  legal 
degree,  then  the  maxim  applies  that  in  criminalibus 
sufficit  generalis  m  ilitia  iiitentionis  ciLiii  facto  parts 
gradus  (/^),  "  All  crimes,"  says  Bacon,  "  have  their 
conception    in    a    corrupt    intent,    and    have    their 


i> 


(/)  Reg.  V.  Palmer.,  Shorthand  Report  at  p.  308.  Central  Criminal 
Court,  May,  1856.  The  details  of  the  case  are  set  out  at  length,  infra., 
pp.  344-351.  As  to  the  use  of  the  word  motive  in  this,  the  next  and 
some  later  passages,  see  note  at  p.  45,  supra. 

{g)  Rex  V.  Farringion,  R.  &  R.  at  p.  207  ;  Rex  v.  Harvey,  2  B.  & 
C.  257  ;  Rexv.  Dixon,  3  M.  &  S.  11. 

{h)  Bacon's  Maxims  of  the  Law,  Regula  xv.  (Bacon's  Works, 
edited  by  Spedding,  Ellis  and  Heath,  1859,  vol.  vii.). 


54  INCULPATORY    MORAL    INDICATIONS. 

consummation  and  issuing  in  some  particular  fact, 
which  though  it  be  not  the  fact  at  which  the  intention 
of  tlie  malefactor  levelled,  yet  the  law  giveth  him 
no  advantage  of  the  error,  if  another  particular 
ensue  of  as  high  a  nature.  Therefore  if  an  im- 
poisoned  apple  be  laid  in  a  place  to  impoison  I.  S., 
and  I.  D.  cometh  by  chance  and  eateth  it,  this 
is  murder  in  the  principal,  that  is  actor,  and  yet 
the  malice  in  individuo  was  not  against  I.  D.  "(z). 
"  In  capital  causes,"  declares  the  same  high  authority, 
"  in  favorem  vitcB,  the  law  will  not  punish  in  so  high 
a  degree,  except  the  malice  of  the  will  and  intention 
do  appear  "  {k).  But  nevertheless  the  rule  under 
discussion  has  been  extended  beyond  all  reasonable 
application,  as  where  two  persons  were  convicted  of 
lying  in  wait  and  slitting  the  prosecutor's  nose  with 
intent  to  maim  and  disfigure,  an  offence  then  capital 
by  the  statute  22  &  23  Car.  II.  c.  i,  though  the 
real  intention  was  to  commit  murder,  in  order  to 
obtain  an  estate,  an  offence  not  capital,  and  there 
v/as  no  such  special  intent  as  the  statute  re- 
quired (/)  ;  a  case  which,  as  extending  a  criminal 
law  by  equity,  is  inconsistent  with  the  general 
principles  of  jurisprudence,  and  with  the  spirit  of 
many  later  cases  (w). 

(J)  Bacon,  ib.  Regula  xv. 

{k)  Id.  Regula  vii. 

(/)  Rex  V.  VVoodburne  and  Coke,  16  St.  Tr.  54. 

(;«)  4  Lord  Campbell's  Lives  of  the  L.  Ch.  601  ;  Rex  v.  Bell,  Foster's 
Discourses  on  the  Crown  Law,  3rd  ed.  1792,  App.  p.  430;  Rex 
V.  Carroll,  East,  P.  C.  394,  397,  398,  400,  402 ;  Rex  v.  Duffin, 
R.  &  R.  365. 


guilty  consciousness  or  intention.        55 

Section  2. 

declarations  and  acts  indicative  of  guilty 
consciousness  or  intention. 

It  is  very  common  with  persons  who  have  been 
engaged,  or  are  about  to  engage,  in  crime,  to  make 
obscure  or  mysterious  allusion  to  their  criminal  acts 
or  purposes,  or  to  boast  to  others  whose  standard  of 
moral  conduct  is  the  same  as  their  own,  of  what 
they  have  done  or  will  do,  or  to  give  vent  to  expres- 
sions of  revengeful  feelinors  or  of  malio-nant  satisfac- 
tion  at  the  accomplishment  or  anticipated  occurrence 
of  some  serious  mischief.  Such  declarations  or 
allusions  are  of  great  moment  when  clearly  connected 
by  independent  evidence  with  some  anterior  or 
subsequent  criminal  action. 

When  an  act  is  of  such  a  nature  as  not  necessarily 
to  imply  a  guilty  intention,  and  such  intention  is  the 
specific  point  in  issue,  then  the  evidence  of  decla- 
rations by  the  party,  or  of  collateral  circumstances, 
may  be  of  the  last  importance,  as  explanatory  of  his 
motives  and  purposes.  "  Declarations  referring  to 
former  and  existing  facts,"  said  Lord  Chief  Justice 
Eyre,  "are  the  explanation  and  connection  of  those 
facts  which  serve  to  make  them  intelligible.  .  .  . 
According  to  the  rules  of  evidence,  what  a  prisoner  has 
said  respecting  a  particular  fact  is  admissible  evidence, 
not  in  the  nature  of  a  confession,  but  as  evidence  of 
the  particular  fact ;  and  it  is  therefore  agreeable  to  the 
general  law  of  evidence  to  receive  such  declarations 
in  all  cases   whatever,  in   order  to   explain  and  to 


56  INCUI.rATORV    MORAL    INDICATIONS. 

establish  tlu;  true  st.ite  of  any  matter  of  fact  which  is 
in  disi)uic  or  the  subject  of  inquiry  before  a  jury"  {n). 

The  just  effect  of  such  language  in  reference  to 
future  events  is  to  show  the  existence  of  the  disposi- 
liou,  from  which  criminal  actions  proceed,  to  render 
it  less  improbable  that  the  person  proved  to  have 
used  it  would  commit  the  particular  offence,  and  to 
explain,  if  it  be  in  itself  ambiguous,  the  motive  or 
object  of  the  contemplated  action.  But  evidence  of 
such  language  cannot  dispense  with  the  obligation 
of  sufficient  proof  of  the  criminal  facts  ;  for,  though 
malignant  feelings  may  possess  the  mind,  and  lead 
to  intemperate  and  criminal  expressions,  they  never- 
theless may  exercise  but  a  transient  influence  without 
leading  to  action  (<?).  It  must  be  borne  in  mind, 
too,  as  in  regard  to  the  proof  of  language  in  general, 
that  declarations  may  be  obscure  in  themselves,  or 
imperfectly  remembered,  and  that  witnesses  may 
speak  without  a  strict  and  due  regard  to  truth  (/). 
"Words,"  says  Mr.  Justice  Foster,  "are  transient 
and  fleeting  as  the  wind  ;  they  are  frequently  the 
effect  of  sudden  transport  easily  misunderstood,  and 
often  misreported  "  (17).  It  has  been  well  remarked 
that,  "  Mere  threats  often  proceed  from  temporary 
irritation  without  deep-rooted  hostility.  They  indi- 
cate a  rash  and  unguarded  rather  than  a  determinedly 
malignant  character ;  and  the  very  utterance  of 
them,  as  every  one  well  knows,  tends  to  defeat  their 

(«)  See  Rex  V.  Crossjichi,  26  St.  Tr.  215. 
{o)  Bentham's  Rationale  of  Jud.  Ev.  b.  5,  c.  4,  s.  2. 
{p)  Per  Dallas,  J.,  in  Rex-  v.  Tu7'ner,  32  St.  Tr.  1 132. 
{q)   Foster's  Discourses  on  the  Crown  Law,  Disc.  L  ch.  i.  s.  8,  3rd  ed. 
(1792)  p.  204. 


GUILTY    CONSCIOUSNESS    OR    INTENTION.  57 

execution.  The  man  who  has  resolved  on  a  crime 
is  more  apt  to  keep  his  purpose  to  himself,  or  to 
confide  it  to  an  associate,  under  the  seal  of  secrecy. 
Even  the  most  wary,  however,  sometimes  let  their 
wicked  purposes  peep  out  accidentally  in  the  freedom 
of  companionship,  or  the  weakness  of  drunken  con- 
fidence. When  such  unguarded  hints,  dark  and 
apparently  unmeaning  at  the  time,  coincide  with  the 
subsequent  tokens  of  guilt,  they  are  strong  cords  in 
the  net  of  criminating  evidence  "  (r). 

On  the  principle  under  consideration,  all  such 
relevant  acts  of  the  party  as  may  reasonably  be 
considered  explanatory  of  his  motives  and  purposes, 
even  though  they  may  severally  constitute  distinct 
felonies,  are  clearly  admissible  in  evidence.  Such 
evidence  is  known  as  "  evidence  of  similar  facts  "  ; 
and  although  it  is  inadmissible  where  it  amounts  to 
evidence  of  distinct  and  different  offences  against 
other  persons,  unconnected  with  and  unrelated  to  the 
particular  act  in  question,  it  is  held  to  be  relevant, 
and  is  frequently  received,  not  for  the  purpose  of 
showing  a  predisposition  to  commit  such  a  crime  as 
the  offence  charged,  but  to  show  the  character  of 
the  act,  or  the  state  of  mind  with  which  it  was  done ; 
either  to  show  guilty  knowledge  or  a  wicked  system, 
or  to  rebut  obvious  defences,  such  as  mistake  or 
accident.  For  these  purposes  evidence  of  similar 
acts,  whether  previous  or  subsequent  {s)  to  the  act 

(r)   I  Dickson's  Law  of  Evidence  in  Scotland,  §  269,  p.  157- 

(s)  In  charges  of  obtaining  money  by  false  pretences,  it  has  been 

said  that  whereas  previous  acts  are  admissible  {Reg.  v.  Francis,  L.  R. 

2  C.  C.  1 28)  subsequent  acts  are  not.     This  would  seem  to  have  arisen 

from   a   misunderstanding  of  Reg.   v.  Holt  (Bell,   C.   C.   2S0).     See 


58  INCULPATORY    MORAL    INDICATIONS. 

charged,  may  be  received  on  any  criminal  charge, 
or  in  any  civil  action  or  proceeding  (/). 

Our  reports  present  many  illustrations  of  this 
rule.  A  few,  however,  will  explain  its  legitimate 
application.  Upon  a  charge  of  uttering  forged 
bank-notes,  knowing  tliem  to  be  forged,  evidence 
may  be  given  that  the  prisoner  uttered  other  forged 
notes  either  before  or  after  the  uttering  of  the  note 
in  question,  or  that  other  forged  notes  were  found 
upon  his  person,  or  that  other  forged  notes  of  the 
same  kind  were  found  in  the  bank  with  the  prisoner's 
handwriting  upon  them(?/).  In  the  same  way  upon 
a  charo-e  of  utterinc:  counterfeit  coin,  knowing^  it  to 
be  counterfeit,  the  facts  that  other  counterfeit  coins 
were  found  in  his  pockets  (a),  or  that  the  prisoner 
previously  or  subsequently  uttered  other  counterfeit 
coin  of  a  similar  or  different  description,  although 
such  utterings  are  the  subject  of  separate  indict- 
ments [y),  are  admissible  in  evidence  in  order  to 
show  his  guilty  knowledge. 

Where  upon  the  trial  of  a  man  for  setting  fire  to  a 
stack  of  straw  it  appeared  that  it  caught  fire  by  his 

J^e^.  V.  Rhodes  (L.  R.  1899,  i  Q.  B.  'j'])^  where  subsequent  acts  were 
admitted,  and  Reg.  v.  Holt  was  approved. 

(/)  "  There  is  no  difference,  that  I  am  aware  of,  between  the  rule  in 
civil  and  in  criminal  cases  on  this  subject."  Per  Grove,  J.,  in  Blake  v. 
TJie  Albion  Life  Ass.  Co.,  4  C.  P.  D.  94. 

(«)  See  Rex  v.  IVylie,  and  Rex  v.  Tal/ersall,  i  Bos.  &  P.  N .  R.  92, 93,  n. ; 
Rex  V.  Sunderland,  1  Lewin,  C.  C.  102,  and  cases  there  cited  ;  Aex  v. 
Ball,  I  Camp.  324,  R.  &  R.  132  ;  and  cf.  Rex  v.  Millward,  R.  &  R.  248. 

{x)  Reg.  V.  Jarvis,  25  L.  J.  M.  C.  30. 

{y)  Reg.  V.  Foster  or  Forster,  24  L.  J.  M.  C.  134  ;  6  Co.x,  C.  C.  521  ; 
Reg.  V.  Weekes,  8  Cox,  C.  C.  455. 


GUILTY    CONSCIOUSNESS    OR    INTENTION.  59 

having  fired  a  gun  very  near  to  it,  evidence  was 
admitted  that  the  stack  had  been  set  fire  to  the  day 
before,  and  that  the  prisoner  was  very  near  to  it 
with  his  gun  at  the  same  time  (z) ;  and  in  a  similar 
case  Mr.  Justice  Patteson  admitted  evidence  of  the 
prisoner's  presence  and  demeanour  at  incendiary 
fires  of  other  ricks  the  property  respectively  of  two 
other  persons,  which  occurred  the  same  night, 
although  these  fires  were  the  subject  of  other  indict- 
ments against  the  prisoner  :  but  the  learned  judge 
held  that  evidence  could  not  be  given  of  threats, 
statements,  and  particular  acts  pointing  alone  to 
such  other  charges,  and  not  tending  to  explain  the 
conduct  of  the  prisoner  in  reference  to  the  fire  in 
question  (a).  And  where  the  question  was  whether 
the  prisoner  set  fire  to  his  house  accidentally  or 
intentionally  in  order  to  obtain  the  insurance  money 
on  it,  the  fact  that  two  other  houses  in  which  he 
had  lived  had  been  burned  down,  and  that  he  had 
obtained  the  money  for  which  they  had  been  insured, 
is  admissible  to  negative  the  suggestion  of  accident  (^). 
With  regard  to  cases  of  arson,  Mr.  Justice  Erie  said 
that  his  experience  had  taught  him  that  indications 
of  guilt  were  often  found  in  extremely  minute  cir- 
cumstances, which  were  not  the  less  cogent  on  that 
account  ;  that  it  was  to  the  words  whether  true  or 
false,  by  which  a  man  accounted  for  himself  at  a 
critical  time,  to  his  conduct  when  the  fire  was  in 
progress,  to  his  manner  of  offering  assistance  and 

(z)  Reg.  V.  Dosseti,  2  C.  &  K.  306,  cor.  Maule,  J. 

{a)  Reg.  V.  Taylor,  5  Cox,  C.  C.  138,  and  for  a  precisely  similar 
ruling  in  arson,  see  Reg.  v.  Harris,  4  F.  &  F.  342. 

{b)  Reg.  V.  Gray,  4  F.  &  F.  1102,  approved  in  Makin  v.  The  A.-G. 
/or  New  South  Wales,  1894,  App.  Cas.  57. 


60  INCULPATORY    MORAL    INDICATIONS. 

Other  such  particulars,  that  attention  should  be  directed, 
and  that  in  the  absence  of  broad  facts,  such  minute 
circumstances  often  afforded  satisfactory  evidence  (<:). 
Upon  a  charge  of  maliciously  shooting,  where  the 
question  was  whether  the  act  proceeded  from  acci- 
dent or  design,  evidence  was  admitted  that  the 
prisoner  had  intentionally  shot  at  the  same  person 
about  a  quarter  of  an  hour  before  (^t'). 

In  charges  of  murder  the  same  rule  applies,  and 
two  cases  referred  to  at  length  hereafter  afford  an 
illustration.  On  a  charge  of  murder  by  administer- 
ing prussic  acid  in  porter,  Mr.  Baron  Parke  admitted 
evidence  that  the  deceased  had  been  taken  ill  several 
months  before,  after  partaking  of  porter  with  the 
prisoner,  and  said  that  although  this  was  no  direct 
proof  of  an  attempt  to  poison,  the  evidence  was 
nevertheless  admissible,  because  anything  tending 
to  show  antipathy  in  the  party  accused  against  the 
deceased  was  admissible  (e) ;  and  where  the  charge 
was  of  poisoning  with  strychnine,  after  proof  that 
the  prisoner  was  possessed  of  strychnine  in  capsules, 
evidence  was  received  by  Mr.  Justice  Hawkins  that 
three  other  women  died  from  the  effects  of  str)  chnine 
after  being  intimate  with  the  prisoner,  and  that  he 
attempted  to  poison  a  fourth  (/). 

In  a  recent  leading  case  this  subject  was  fully 
discussed   before    the    Judicial    Committee    of  the 

(<r)  Charge  to  the  Grand  Jury,  Warwick  Spring  Assize,  1859. 
Id)  Rexv.  Yoke,  R.  &  R.  531. 

{e)  Reg.  V.  Taivell,  pp.  313-317,  infra;  2  C.  &  K.  p.  309,  note. 
(/)  Reg,  V.  Neill.,  p.  106,  infra. 


GUILTY    CONSCIOUSNESS    OR    INTENTION.  6l 

Privy  Council,  upon  an  appeal  from  the  Supreme  Court 
of  New  South  Wales.  A  man  named  Makin  and  his 
wife  were  tried  at  Darlinghurst  for  the  wilful  murder 
of  an  infant  child,  whose  body  was  found  buried  in  the 
backyard  of  a  house  where  the  prisoners  had  lived. 
They  represented  to  the  mother  that  they  were 
willing  to  take  the  child  upon  payment  of  a  small 
premium  of  ^3,  as  they  desired  to  adopt  it,  having 
lost  a  child  of  their  own  ;  and  they  had  alleged  that 
they  had  received  only  one  child  to  nurse,  and  had 
given  it  back  to  the  parents.  Evidence  was  admitted 
to  prove  that  several  other  infants  were  received 
from  their  mothers  on  similar  representations  and 
upon  payment  of  a  sum  inadequate  for  their  support 
for  more  than  a  very  limited  period ;  and  that  the 
bodies  of  some  ten  other  infants  had  been  found 
buried  in  a  similar  manner  in  the  earden  or  back- 
yard  of  houses  where  the  prisoners  had  successively 
lived.  The  prisoners  were  found  guilty,  but  the 
judge  deferred  sentence  until  after  the  argument  of 
a  special  case,  as  to  whether  such  evidence  was 
rightly  admitted.  The  Judicial  Committee  held 
that  the  evidence  was  relevant  to  the  issue  to  be 
tried  by  the  jury,  and  was  rightly  admitted  {£■). 

With  regard  to  charges  of  receiving  property 
knowing  it  to  be  stolen,  the  same  rule  was  formerly 
strictly  applied  (/i).     But  this  subject  is  now  regulated 

(^)  Makin  v.  The  A.-G.  for  New  South  Wales,  1894,  App.  Cas.  57, 
following  Reg.  v.  Geering  (i8  L.  J.  M.  C.  215),  see  p.  322,  infra,  and 
Reg.  V.  Dossett,  and  Reg.  v.  Gray,  supra,  p.  59. 

(Ji)  See  Reg.  v.  Bleasdale,  2  C.  &  K.  765  ;  Rex  v.  Dunn,  i  Moody,  C.  C. 
146  ;  Rex  V.  Davis,  6  C.  &  P.  177.  In  Reg.  v.  Oddy  (5  Cox,  C.  C.  210  ; 
20  L.  J.  M.  C.  198)  evidence  of  possession  by  the  prisoner  (previous 


62  INCULPATORY    MORAL    INDICATIONS. 

by  statute,  and  some  restrictions  and  modifications 
have  been  introduced  by  legislation.  By  the  Pre- 
vention of  Crimes  Act,  1871  {i),  s.  19,  it  is  enacted 
that  "  where  proceedings  are  taken  against  any 
person  for  having  received  goods  knowing  them 
to  be  stolen,  or  for  having  in  his  possession  stolen 
property,  evidence  may  be  given  at  any  stage  of  the 
proceedings  that  there  was  found  in  the  possession 
of  such  person  other  property  stolen  within  the  pre- 
ceding period  of  twelve  months  and  such  evidence, 
may  be  taken  into  consideration  for  the  purpose  of 
proving  that  such  person  knew  the  property  to  be 
stolen,  which  forms  the  subject  of  the  proceedings 
taken  against  him."  This  section  also  allows  the 
proof  of  any  previous  conviction  (within  five  years) 
for  fraud  or  dishonesty,  provided  seven  days'  notice 
of  the  intention  to  prove  it  is  given  ;  and  such  convic- 
tion may  be  taken  into  consideration  for  proving 
that  the  accused  knew  the  property  was  stolen. 

This  is  an  abrogation  of  the  strict  principles  of 
the  law  in  cases  only  of  receiving  stolen  property, 
inasmuch  as  it  is  not  now  necessary  to  show  any 
connection  between  the  property  found  in  the 
prisoner's  possession  and  that  which  is  the  subject 
of  the  charge.  But  the  statute  has  been  confined 
to  reasonable  limits,  as  it  has  been  held  that  the 
other  property  must  be  found  a^  or  abottt  the  time 

to  the  dateof  the  alleged  receiving)  of  other  goods  stolen  at  other  times 
from  other  persons,  was  rejected  as  inadmissible  on  a  count  for  either 
stealing  or  receiving.  On  principle  this  is  quite  correct,  (see  per  Lord 
Halsbury,  L.C.,  in  Makiti's  case,  supra),  and  is  still  good  law  except 
in  cases  of  receivmg  covered  by  the  section  above  quoted. 
(i)  34  &  35  Vict.  c.  112. 


GUILTY    CONSCIOUSNESS    OR    INTENTION.  63 

of  finding-  the  stolen  property  in  question,  an.l  that 
if  it  has  been  disposed  of  before  such  finding, 
evidence  as  to  its  possession  is  inadmissible  (k). 

The  subject-matter  of  this  section  may  be  summarised  as  follows  : — 

I.  The  prosecutor  may  not,  for  the  purpose  of  showing  that  the 
prisoner  was  likely  to  have  committed  the  offence  charsfcd,  give  evi- 
dence, either  (a)  in  the  form  of  statements  made  by  the  prisoner,  or 

(b)  in  the  form  of  direct  testimony  of  witnesses,  that  the  prisoner  has 
committed  similar  but  distinct  offences  or  has  a  disposition  to  commit 
such  offences. 

II.  But  the  above  rule  does  not  exclude  evidence  of  similar  offences, 
(a)  wherever  such  offences  are  so  mixed  up  with  that  charged  as  to 
form  virtually  one  transaction  ;  (b)  wherever  they  are  relevant  to  make 
out  any  step  in  the  proof  of  the   offence    charged  ;  and  especially 

(c)  wherever  they  are  relevant  to  make  out  guilty  knowledge  or  inten- 
tion in  the  commission  of  the  act  which  is  the  subject  of  the  charge, 
or  to  rebut  obvious  defences  such  as  accident,  mistake,  and  the  like. 

III.  The  rules  of  evidence  above  referred  to  are  quite  distinct 
from  the  rules  of  procedure  relating  to  the  joinder  of  distinct  offences 
in  several  counts  in  one  indictment,  and  the  prosecutor's  election. 

It  will  be  found  on  examination  of  the  cases  that  it  is  somewhat 
difficult  in  application  to  distinguish  between  rules  II.  (b)  and  (c)  and 
III.  It  has  been  held  in  certain  cases  that  rule  11.  (c)  applies 
where  the  commission  of  the  physical  act  charged  has  been  already 
proved,  and  it  only  remains  to  prove  guilty  knowledge  or  intention 
(see  J^e£.  v.  Fi-ancis,  L.  R.  2  C.  C.  R.  108  ;  and  Blake  v.  Albion  Life 
Assurance  Society,  4  C.  P.  D.  94).  Other  cases,  however,  have 
gone  considerably  further.  Thus  in  Reg.  v.  Geering  {\Z  L.  J.  M.  C. 
215,  and  p.  322,  infra)  ;  Reg.  v.  Gray  (4  F.  &  F.  1102)  ;  and  Makin  v. 
A.-G.  for  New  South  Wales  (1894,  App.  Cas.  57),  the  evidence  was 
admitted  where  the  question  at  issue  was  the  commission  of  the  crime 
as  a  whole,  including  the  commission  of  the  physical  act  charged.  In 
the  last  of  these  cases  it  was  held  that  such  evidence  may  be  relevant 
"  if  it  bears  upon  the  question  whether  the  acts  alleged  to  constitute 
the  crime  charged  in  the  indictment  were  designed  or  accidental,  or 
to  rebut  a  defence  which  would  otherwise  be  open  to  the  accused." 
These  three  decisions  show,  if  any  authority  were  needed,  that  it  is 
not  necessary  to  the  admissibility  of  such  evidence  to  do  more  than 
prove  by  circumstantial  or  other  evidence  a  prima  facie  case  against 

{k)  See  Reg.  v.  Drage,  14  Cox,  C.  C.  85;  Reg.  v.  Carter,  12 
Q.  B.  D.  522. 


64 


INCULPATORY    MORAL    INDICATIONS. 


the  prisoner  from  which  the  jury  might  or  might  not  infer  tliat  he  had 
committed  the  physical  act  charged.  It  may  be  said  in  general  that 
wherever  the  admissibihty  of  evidence  depends  upon  the  assumption 
of  a  fact,  or  state  of  things,  it  is  sufficient,  in  order  to  render  the  evi- 
dence admissil)lc,  to  <g\\'*t  prima  facie  evidence  of  the  fact  or  state  of 
tilings.  The  course  of  the  case  cannot  be  stopped  whilst  the  jury  or 
tribunal  determines  whether  the  principal  fact  or  state  of  things  has 
been  proved  to  its  satisfaction.  It  may  at  times  be  difficult  to  get  rid 
of  impressions  produced  by  such  evidence  if  the  principal  fact  or 
state  of  things  be  in  the  end  negatived  ;  but  procedure  must  follow 
practical  lines,  and  sufficient  confidence  must  be  reposed  in  the  tribunal 
to  assume  that  it  will  act  rightly  under  such  circumstances.  It  may 
also  be  observed,  with  regard  to  such  cases  as  those  just  mentiotied, 
that  the  similar  offences  were  not  really  distinct^  in  the  sense  that  the 
prisoner's  conduct  presented  the  appearance  of  a  regular  system  or 
series  of  offences  connected  as  parts  of  one  scheme,  and  might  there- 
fore be  regarded  as  all  parts  of  one  wicked  transaction.  For  a  more 
detailed  discussion  of  these  cases  see  Archbold's  Criminal  Pleading, 
22nd  ed.  pp.  283 — 287. 

As  regards  III. — the  joinder  of  distinct  offences  in  one  indictment 
and  election  between  them  by  the  prosecutor — it  should  be  remem- 
bered that  at  common  law  there  was  no  objection,  in  point  of  law,  to 
bringing  a  man  charged  with  several  offences,  if  they  were  all  felonies  or 
all  misdemeanours, before  a  jury  and  making  him  answer  for  the  whole 
at  one  time.  Felonies  and  misdemeanours  could  not  be  tried  together, 
as  the  challenges  and  incidents  of  trial  were  different,  but  if  they  were 
all  felonies  or  all  misdemeanours,  there  was  no  legal  objection  to  the 
joinder.  It  was,  however,  found  out  early  in  our  legal  history  that 
such  a  procedure  ope  ated  unfairly,  and  the  practice  arose,  from  con- 
venience as  well  as  from  a  sense  of  justice,  of  making  the  prosecutor 
elect  upon  which  charge  he  would  proceed,  where  two  or  more  felonies 
were  joined  in  the  same  indictment.  In  cases  of  misdemeanours  this 
was  by  no  means  a  matter  of  course,  but  it  could  be  done  where  many 
counts  were  likely  to  embarrass  the  prisoner  in  his  trial.  See  per  Lord 
Blackburn  in  Castro  v.  The  Queen,  L.  R.  6  App.  Cas.  at  p.  244.  This 
is  the  law  at  the  present  time,  e.xcept  that  in  cases  of  larceny  and 
embezzlement  any  distinct  number  of  acts,  not  exceeding  three,  may 
be  charged  in  one  indictment,  if  they  have  been  committed  within  six 
months.  See  24  &  25  Vict.  c.  96,  ss.  5,  6,  and  71.  For  a  fuller  dis- 
cussion of  these  topics  see  Russell  on  Crimes,  6th  ed.  vol.  ii.  pp.  283 
and  347  et  seq. 


preparations  for  the  commission  of  crime.  65 

Section  3. 
preparations  and  opportunity  for  the  commission 

OF    CRIME. 

Premeditated  crime  must  necessarily  be  preceded 
not  only  by  impelling  motives,  but  by  appropriate 
preparations.  Possession  of  the  instruments  or 
means  of  crime,  under  circumstances  of  suspicion — 
as  of  poison,  coining  instruments,  combustible  matters, 
picklocks,  housebreaking  instruments,  dark-lanterns, 
or  other  destructive,  criminal  or  suspicious  weapons, 

,  materials,  or  instruments,  and  many  other  acts  of 
apparent  preparation — are  important  facts  in  the 
judicial  investigation  of  imputed  crime.  Where  a 
man  had  in  his  possession  a  large  quantitv  of 
counterfeit  coin  unaccounted  for,  and  there  was  no 
evidence  that  he  was  the  maker,  it  was  held  to  raise 
a  presumption  that  he  had  procured  it  with  intent 
to  utter  it  (/).  But  the  personal  character  for  probity, 
and  the  civil  station  of  the  party,  are  highly  material 
in  connection  with  facts  of  this  kind.  A  medical 
man,  for  instance,  in  the  ordinary  course  of  his  pro- 
fession, has  legitimate  occasion  for  the  possession  of 
poisons,  a  locksmith  for  the  use  of  picklocks.  In 
many    cases    the    possession    of  such    materials    or 

'  instruments,  and  other  acts    indicative  of  purpose 
to     commit    crime,    are    made    by    statute    prima 

facie    presumptions   of    guilt,    and    in   some   even 
substantive  offences  {ifi). 

(/)  Rex  V.  Fuller,  R.  &  R.  308. 
(w)  See  infra^  s.  8,  p.  1 28. 
C.E.  P 


66  INCULPATORY    MORAL    INDICATIONS. 

Facts  of  the  kind  referred  to  become  more 
powerful  indications  of  guilty  purpose,  if  false  reasons 
are  assigned  to  account  for  them  ;  as  in  the  case  of 
possessing  poison,  that  it  was  procured  to  destroy 
vermin,  which  is  the  excuse  commonly  resorted  to 
in  such  cases. 

The  bare  possession  of  the  means  of  crime,  or 
other  mere  acts  of  preparation,  without  more  con- 
clusive evidence,  are  not  in  general  of  great  weight, 
because  the  intended  guilt  may  not  have  been  con- 
summated ;  and  until  that  takes  place  there  is  the 
loais  pcenitentice.  But  as  preparations  must  neces- 
sarily precede  the  commission  of  premeditated  crime, 
some  traces  of  them  may  generally  be  expected  to 
be  discovered  ;  and  if  there  be  not  clear  and  decisive 
proof  of  guilt,  the  absence  of  any  evidence  of  such 
preliminary  measures  is  a  circumstance  strongly 
presumptive  of  innocence. 

Falsehoods  and  invented  stories  are  frequently 
told  by  prisoners  before  the  commission  of  a  crime 
in  order  to  prepare  the  minds  of  their  acquaint- 
ances for  the  catastrophe,  and  in  cases  of  some 
doubt  or  where  natural  death  or  suicide  is  set  up 
as  a  defence  to  a  charge  of  murder,  such  conduct 
may  prove  .  more  important  evidence  of  guilt  than 
any  conduct  subsequent  to  the  event.  In  a  case 
referred  to  at  length  hereafter,  a  medical  man  was 
indicted  for  the  murder  of  his  wife  by  poison,  and 
the  defence  was  accident  and  negligence  in  leaving 
the  poison  by  her  side.  Perhaps  the  most  striking 
evidence   against    him   was    that    he   wrote  various 


PREPARATIONS  FOR  THE  COMMISSION  OF  CRIME.    67 

letters  before  his  wife's  death  stating  that  she  was 
unwell,  that  she  was  under  the  care  of  two  medical 
men  and  was  apprehensive  of  a  miscarriage,  at  a 
time  when  she  was  cheerful  and  well.  The  evidence 
as  a  whole  left  some  doubt  in  the  case,  and  the 
prisoner  was  acquitted  (;/). 

At  the  Central  Criminal  Court  in  1864,  before 
Mr.  Justice  Byles,  Mary  Hartley  was  indicted  for 
the  murder  of  her  infant  child.  The  body  was  dis- 
posed of  in  a  suspicious  manner,  but  the  defence  was 
that  the  child  had  died  a  natural  death.  The  day 
before  the  alleged  murder,  the  prisoner  wrote  a  letter 
in  which  she  stated  that  her  child  was  dead,  whereas 
at  that  time  and  for  twelve  hours  afterwards  it  was 
alive  and  in  good  health.  She  was  found  guilty 
and  sentenced  to  death  [0). 

In  1889  a  woman  was  tried  at  Warwick  and  con- 
victed for  administering  poison  with  intent  to  murder. 
She  had  been  employed  in  the  house  of  a  medical 
man,  and  had  put  corrosive  sublimate  into  tea  and 
other  articles  of  food  which  she  had  prepared  for  his 
wife.  Amonofst  the  evidence  acjainst  her  was  that 
she  had  told  the  milkman  that  she  did  not  think 
the  lady — who  was  at  the  time  indisposed,  but  not 
seriously  ill — would  live.  Upon  being  asked  why, 
she  said  that  she  had  heard  "  a  token  " — the  footsteps 
of  a  man  flying  along  the  landing — that  she  had 
opened  the  door  and  could  not  see  anything,  that 
she  had  told  the  doctor  and  he  said   it  was  a  token 

(«)  A'e^.  V.  Belaney.     See  iiijra,  pp.  336 — 343. 

{p)  Reg.  V.  Hartley.     See  the  Times,  August  i8th,  1864, 

F    2 


68  INCULPATORY    MORAL    INDICATIONS. 

of  death.     She  had  had  no  such  conversation  with 
him  (/). 

In  the  foreofoinor  remarks  it  is  of  course  assumed 
that  the  party  possessed  the  opportiniity  of  commit- 
ting the  imputed  act,  without  which  neither  the  exist- 
ence of  motives,  nor  the  manifestation  of  criminal 
intention  by  threats  or  otherwise,  followed  even  by 
preparations  for  its  commission,  can  be  of  any  weight. 

Section  4. 

recent  possession  of  the  fruits  of  crime. 

Since  the  desire  of  dishonest  gain  is  the  impelling 
motive  to  theft  and  robbery,  it  naturally  follows  that 
the  possession  of  the  fruits  of  crime  recently  after  it 
has  been  committed,  affords  a  strong  and  reasonable 
ground  for  the  presumption  that  the  party  in  whose 
possession  they  are  found,  was  the  real  offender, 
unless  he  can  account  for  such  possession  in  some 
way  consistent  with  his  innocence  [q).  The  force  of 
this  presumption  has  been  recognized  from  the  earliest 
times  ;  and  it  is  founded  on  the  obvious  consideration, 
that  if  such  possession  had  been  lawfully  acquired, 
the  party  would  be  able,  at  least  shortly  after  its 
acquisition,  to  give  an  account  of  the  manner  in  which 
it  was  obtained  ;    and  his  unwillingness  or  inability 

(^)  Reg.x. Sarah  Kibbler^^itx\v'\(:i}s.h\x\.ViVi\w  Assizes,  17th  December, 
18S9,  coram  Wills,  J. 

(q)  Rex  V.  Bnrdett,  4  B.  &  Aid.  at  p.  149  ;  Burnett  on  the  Criminal 
Law  of  Scotland,  p.  555  ;  2  Mascardus  De  Probationibus,  Concl. 
DCCCXXXiv.  ;  I  Hume's  Comm.  on  the  C.  L.  of  Scotland,  iii  ;  Beat 
on  Presumptions  (1844),  p.  44. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.     6g 

to  afford  such  explanation  is  justly  regarded  as 
amounting  tostrongself-condemnatoryevidence.  But 
it  has  been  ruled,  that  if  the  party  give  a  reasonable 
account  of  the  way  in  which  he  became  possessed  of 
the  property,  as  by  stating  the  name  of  the  person 
from  whom  he  obtained  it,  and  such  party  is  known 
to  be  a  real  person,  and  capable  of  being  easily 
referred  to,  it  is  then  incumbent  on  the  prosecutor 
to  show  that  such  account  is  false.  Therefore,  where 
a  man  was  indicted  for  stealing  a  piece  of  wood, 
which  was  found  in  his  shop  five  days  after  the  theft, 
and  he  stated  that  he  had  bought  it  from  a  person 
whom  he  named,  who  lived  about  two  miles  off,  it 
was  held  that  the  prosecutor  was  bound  to  show 
that  the  account  was  false  (r).  But  if  the  account 
given  be  unreasonable  or  improbable  on  the  face  of 
it,  or  if  the  party  have  given  different  accounts  of 
the  same  transaction,  then  he  will  not  be  relieved 
from  the  pressure  of  the  general  rule  of  presump- 
tion (.y).  It  is,  however,  in  all  cases  for  the  jury  to 
judge  whether  the  prisoner  has  given  a  sufficiently 
reasonable  account  of  his  doings  to  put  the  prosecu- 
tion upon  further  inquiry  (/),  and  what  effect  should 
be  given  to  any  failure  to  make  such  inquiry.  No 
absolute  or  hard-and-fast  rule  can  be  laid  down  upon 
the  subject,  and  all  the  circumstances  which  affect 
the  question  whether  it  was  reasonable  that  a  par- 
ticular line  of  investigation  should  be  taken  up,  or 
which   tend  to  show  that   injustice  has   or  has  not 

(r)  Re^.  V.  Crotvlnirst,  i  C.  &  K.  370  ;  cf.  Reg.  v.  Sinith,  2  C.  &  K. 
207. 

is)  Reg.  V.  Harmer,  3  Cox,  C.  C.  487  ;  Reg.  v.  Dcbley,  2  C.  &  K.  818. 
(/)  Reg.  V.  Hughes,  1  Cox,  C.  C.  176. 


70  INCULPATORY    MORAL    INDICATIONS. 

been  done  to  the  prisoner  by  the  omission  to  do  so, 
must  be  taken  into  consideration  and  weighed  along 
with  the  rest  of  the  evidence. 

I.  It  is  manifest  that  the  force  of  this  rule  of  pre- 
sumption depends  upon  the  recency  of  the  possession 
as  related  to  the  crime,  and  that  if  the  interval  of 
time  is  considerable,  the  presumption  is  much 
weakened,  and  more  especially  if  the  goods  are  of 
such  a  kind  as  in  the  ordinary  course  of  things 
frequently  to  change  hands.  From  the  nature  of 
the  case,  it  is  not  possible  to  fix  any  precise  period 
within  which  the  effect  of  this  rule  of  presumption 
can  be  limited  ;  it  must  depend  not  only  upon  the 
mere  lapse  of  time,  but  upon  the  nature  of  the  pro- 
perty, and  the  concomitant  circumstances  of  each 
particular  case.  Where  two  pieces  of  woollen  cloth 
in  an  unfinished  state,  consisting  of  about  twenty 
yards  each,  were  found  in  the  possession  of  the  prisoner 
two  months  after  being  missed,  and  still  in  the  same 
state,  it  was  held  that  this  was  a  possession  suffi- 
ciently recent  to  call  upon  him  to  show  how  he  came 
by  the  property  [iC).  In  another  case,  Mr.  Justice 
Bayley  directed  an  acquittal,  because  the  only  evi- 
dence against  the  prisoner  was  that  the  goods  were 
found  in  his  possession  after  a  lapse  of  sixteen 
months  from  the  time  of  their  loss  {v)  ;  and  where  a 
shovel  was  found,  six  months  after  the  theft,  in  the 
house  of  the  prisoner,  who  was  not  then  at  home, 
Mr.  Baron  Gurney  held  that  on  this  evidence  alone 
the  prisoner  ought  not  to   be   called  upon  for  his 

(«)  Reg.  V.  Partridge,  7  C.  &  P.  5 5 1, 
(z/)  Rex  V. ,  2  C.  &  P.  459. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.     7I 

defence  tv).  Where  the  evidence  against  a  prisoner, 
charged  with  the  larceny  of  an  axe,  a  saw  and  a 
mattock,  was,  that  tlie  stolen  articles  were  found  in 
his  possession  three  months  after  they  were  missed, 
it  was  held  that  this  was  not  such  a  recent  possession 
as  />er  se  to  put  him  upon  showing  how  he  came  by 
them  {y) ;  and  where  a  stolen  horse  was  found  in 
the  prisoner's  possession  six  months  after  it  was  lost, 
Mr.  Justice  Maule  held  that  this  was  no  case  to  go 
to  the  jury  [z).  But  in  another  case,  where  three 
sheets  were  found  upon  the  prisoner's  bed  in  his 
house  three  months  after  they  had  been  stolen, 
Mr.  Justice  Wightman  held  that  the  case  must  go 
to  the  jury,  on  the  ground  that  it  was  impossible 
to  lay  down  any  rule  as  to  the  precise  time  which 
was  too  great  to  call  upon  the  prisoner  to  account 
for  the  possession  {a)  ;  and  where  seventy  sheep 
were  put  upon  a  common  on  the  i8th  of  June,  but 
not  missed  until  November,  and  the  prisoner  was 
proved  to  have  had  possession  of  four  of  them  in 
October,  and  of  nineteen  more  on  the  23rd  of 
November,  the  judge  allowed  evidence  of  the 
possession  of  both  to  be  given  [b). 

2.  It  is  obviously  essential  to  the  just  application 
of  this  rule  of  presumption,  that  the  house  or  other 
place  in  which  the  stolen  property  is  found  should 
be    in    the    exclusive   possession    of    the   prisoner. 

(a)  Rex  V.   Cruttenden,  Best  on  Presumptions  (1844),  p.  306  ;    6 
Jurist,  267. 

(/)  Rex  V.  Adams,  3  C.  &  P.  600. 

\z)  Reg.  V.  Cooper,  3  C  &  K.  318, 

{a)  Rex  V.  Hewlett,  3  Russell  on  Crimes,  6th  ed.  p.  355,  note  (a). 

{p)  Rex  V.  Dewhirst,  2  Starkie  on  Ev.  3rd  ed.  p.  614. 


72  INCULPATORY    MORAL    INDICATIONS. 

Where  it  is  founcl  in  the  apartments  of  a  lodger, 
for  instance,  the  presumption  may  be  stronger  or 
weaker,  according  as  the  evidence  does  or  does  not 
show  an  exclusive  possession.  As  a  general  rule, 
where  stolen  goods  are  found  in  the  house  of  a 
married  man,  they  must  be  considered  in  his  posses- 
sion, and  not  in  the  possession  of  his  wife,  unless 
there  be  evidence  of  something  specially  to  implicate 
her,  such  as  statements  made,  or  acts  done  by  her, 
in  which  case  it  must  be  left  to  the  jury  to  decide  in 
whose  possession  they  were  {c).  Therefore,  where 
a  wife  was  indicted  with  her  husband  for  receiving 
stolen  property,  and  it  appeared  that  she  had 
destroyed  the  property,  it  was  held  to  be  a  question 
for  the  jury  whether  she  had  so  dealt  with  it,  to  aid 
her  husband  in  turning  it  to  profit,  or  merely  to  con- 
ceal his  guilt,  or  screen  him  from  the  consequences  (d). 
And  where,  upon  the  trial  of  a  man  for  receiving  stolen 
tin,  it  was  objected  that  evidence  to  prove  that  his 
wife  was  seen  carrying  tin  under  her  cloak  from  a 
warehouse  on  the  premises  immediately  after  his 
arrest,  ought  not  to  be  received,  as  the  possession 
was  the  personal  possession  of  the  wife,  and  ought 
not  to  affect  the  husband,  Mr.  Justice  Coleridge  held 
that  it  was  for  the  jury  to  consider  whether  the 
wife's  was  not  the  prisoner's  possession,  she  being 
upon  the  premises,  and  all  the  circumstances  being 
taken  into  consideration,  and  that  it  was  not  like  the 
case  where  the  wife  is  in  possession  of  stolen  property 
at  a  distance  from  the  premises  of  her  husband  {e). 

{c)  Reg.  V.  Batiks,  i  Cox,  C.  C.  238. 

{d)  Reg.  V.  iWClarens,  3  Cox,  C.  C.  425  ;  and  Reg.  v.  Brook,  6  ib.  148. 

{e)  Reg.  V.  Mansfield,  Car.  &  M.  140. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.     "^ }^ 

3.  The    force    of  this  presumption  is   greatly  in- 
creased if  the  fruits  of  a  plurality  or  of  a  series  of 
thefts  be  found  in  the  prisoner's  possession,  or  if  the 
property  stolen  consist  of  a  number  of  miscellaneous 
articles,  or  be  of  an   uncommon  kind,  or  from   its 
value  or  other  circumstances,  be  inconsistent  with 
or  unsuited  to  the  station  of  the  party.      On  the  trial 
of  two  men  at  Aberdeen  autumn   circuit,    1824,   it 
appeared  that  a  carpenter's  workshop  at  Aberdeen 
was  broken  open   on  a  particular  night,  and  some 
tools  carried  off,   and   that  on  the   same  night  the 
counting-houses  of  Messrs.  Davidson  and  of  Messrs. 
Catto  and   Co.,  in  different  parts  of  that  city,  were 
broken  into,  and  goods  and  money  to  a  considerable 
extent  stolen.     The  prisoners  were  met  at  seven  on 
the  follovvinor  morninor  in  one  of  the  streets  of  Aber- 
deen,   at    a   distance    from  either   of  the  places  of 
depredation,  by  two  of  the  police.      Upon  seeing  the 
officers  they  began  to  run  ;  and  being  pursued  and 
taken,  there  was  found  in  the  possession  of  each  a 
considerable    quantity    of   the    articles    taken     from 
Catto  and  Co.,  but  none  of  the  things  taken  from  the 
carpenter's  shop  or  Davidson's.      But  in  Catto  and 
Co.'s  warehouse  were  found  a  brown  coat  and  other 
articles  got  from   Davidson's,  which   had  not  been 
there    the    preceding  evening   when   the   shop  was 
locked  up  ;  and  in  Davidson's  were  found  the  tools 
which    had    been    abstracted    from    the   carpenter's. 
Thus,  the  recent  possession  of  the  articles  stolen  from 
Catto  and  Co.'s  proved  that  the  prisoners  were  the 
depredators   in   that   warehouse  ;    while  the  fact   of 
the  articles  taken  from   Davidson's  having  been  left 
there,  connected  them  with  that  prior  housebreaking  ; 


74  INCULPATORY    MORAL    INDICATIONS. 

and  a,L;ain,  the  chisels  belonging  to  the  carpenter's 
shop,  found  in  Davidson's,  identified  the  persons 
who  broke  into  that  last  house  with  those  who  com- 
mitted the  original  theft  at  the  carpenter's.  The 
prisoners  were  convicted  of  all  tlie  thefts  (/).  A 
still  stronger  case  of  the  same  kind  occurred  at 
Aberdeen,  in  April,  1826,  on  the  trial  of  a  man  who 
was  accused  of  no  fewer  than  nine  different  acts  of 
theft  by  housebreaking,  committed  in  and  around 
that  place  at  various  times  during  the  summer  of 
1825  and  the  following  winter.  No  suspicion  had 
been  awakened  against  the  prisoner,  who  was  a 
carter,  living  an  industrious  and  apparently  regular 
life,  until  one  occasion,  when  some  of  the  stolen 
articles  having  been  detected  in  a  broker's  shop,  and 
traced  to  his  custody,  a  search  was  made,  and  some 
articles  from  all  the  houses  broken  open  found 
amongst  an  immense  mass  of  other  goods,  evidently 
stolen,  in  a  large  chest,  and  about  various  parts  of 
the  prisoner's  house.  Their  number  and  variety, 
and  the  place  where  they  were  found,  were  quite 
sufficient  to  convict  him  of  receiving  the  stolen 
property  ;  but  as  they  were  discovered  at  the  dis- 
tance of  many  months  from  the  times  when  the 
various  thefts  had  been  committed,  the  difficulty  was 
how  to  connect  him  with  the  actual  theft.  The 
charsfes  selected  for  trial  were  five  in  number,  and 
as  nearly  connected  with  each  other  in  point  of  time 
as  possible.  In  none  of  them  was  the  prisoner 
identified  as  the  person  who  had  broken  into  the 

(/)  Rex  V.  Dow7iie  and  Milne,  Alison's  Principles  of  the  Criminal 
Law  of  Scotland,  vol.  i.  p.  313;  2  Mascardus  De  Probationibus, 
Concl.  DCCCXXXI. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.     75 

houses,  although  the  thief  had  been  seen,  and  more 
than  once  fired  at  ;  but  in  all  the  first  four  house.s 
which  had  been  broken  into,  were  discovered  some 
of  the  articles  taken  from  the  others,  and  in  the 
prisoner's  custody  were  found  some  articles  taken 
from  them  all,  which  sufficiently  proved  that  all  the 
depredations  had  been  committed  by  one  person  ; 
and  the  mark  of  an  iron  instrument  was  found  on 
three  of  the  windows  broken  open,  which  coincided 
exactly  with  a  chisel  left  in  the  last  house.  Two 
days  after  the  housebreaking  of  that  house,  an  old 
watch,  part  of  ihe  stolen  property,  was  shown  by 
the  prisoner  to  a  shopkeeper,  to  whom  he  soon 
afterwards  sold  it,  and  by  him  delivered  up  to 
the  officers.  Upon  this  evidence  the  prisoner  was 
convicted  of  all  the  charges  of  housebreaking  (^). 

4.  The  recent  possession  of  stolen  property  may 
sometimes  be  referable  not  to  the  crime  of  theft,  but 
to  that  of  having  received  it  with  a  guilty  knowledge 
of  its  having  been  stolen.  Four  persons  v/ere  found 
guilty  of  housebreaking  on  proof  of  the  recent  pos- 
session of  the  goods,  and  narrowly  escaped  execution, 
the  offence  at  that  time  being  capital,  but  it  was 
afterwards  ascertained  that  one  of  them,  who  had 
long  been  known  as  a  receiver  of  stolen  goods,  knew 
nothing  of  the  robbery  until  after  it  had  been  com- 
mitted, and  had  purchased  .the  goods  from  the  real 
thieves  the  day  after  the  robbery  iji).     The  difficulty 

{g)  Rex  V.  Bowman^  Alison's  Principles  of  the  Cr  minal  Law  of 
Scotland,  vol.  i.  p.  314.  According  to  Scotch  law,  several  offences — • 
not  necessarily  of  the  same  character — could  be  included  in  the  same 
libel.     See  Alison,  vol.  ii.  p.  23S. 

(ti)  Rex  V.  Ellis,  Ann.  Reg.  1831  (Chr.),  p.  65. 


^6  INCULPATORY    MOKAL    INDICATIONS. 

of  rcfcrriiiL]^  tlic  act  of  possession  specifically  to  either 
stealing;  or  receiving  frequently  led  to  the  failure  of 
justice  ;  thus,  where  stolen  goods  were  found  shortly 
after  the  theft  concealed  in  an  old  engine-house,  and 
the  place  being  watched,  the  prisoners  were  seen  to 
go  there;  and  take  them  away,  yet,  being  indicted  as 
receivers,  they  were  acquitted  ;  Mr.  Justice  Patteson 
beinc^  of  opinion  that  this- seemed  to  be  evidence 
rather  of  a  stealing  than  a  receiving  (2).  These  dis- 
tinctions can  seldom  now  lead  to  a  failure  of  justice, 
since  by  24  &  25  Vict.  c.  96,  s.  92  (following  an 
earlier  statute),  counts  for  stealing  and  receiving  the 
same  property  may  be  joined  in  one  indictment  in 
respect  of  the  same  offence. 

It  is  not  necessary  that  the  receiver  of  stolen  pro- 
perty should  have  obtained  a  guilty  knowledge  by 
direct  information  ;  it  is  sufficient  if  the  circumstances 
under  which  it  was  received  were  such  as  must  have 
satisfied  any  reasonable  mind  that  it  must  have  been 
dishonestly  obtained  ;  as,  if  he  purchased  it  at  an 
undue  value  {k),  at  suspicious  and  unseasonable 
times,  or  from  persons  who  in  the  ordinary  course  of 
things  could  not  fairly  be  considered  as  the  unsus- 
pected owners  of  property  of  ihe  particular  descrip- 
tion, or  has  secreted  or  endeavoured  to  secrete  it,  or 
attempted  to  explain  the  manner  of  acquisition  by 
falsehood  or  prevarication  (/). 

(?)  I^ex  V.  Densley^  6  C.  &  P.  399  ;   and   see  Rex  v.  Dyer,  2  East, 
P.  C.  767  ;  and  Rex  v.  Atwell,  ib.  76S. 
(/&)  Hale's  P.  C,  vol.  i.  p.  619. 
(/)  See  Alison's  Principles  of  the  Criminal  Law  of  Scotland,  vol.  i. 


RECENT  POSSESSION  OF  THE  FRUITS  OF  CRIME.     77 

5.  The  possession  of  stolen  goods  recently  after 
the  loss  of  them,  may  be  indicative  not  merely  of 
the  offence  of  larceny,  or  of  receiving-  with  guilty 
knowledge,  but  of  any  other  more  aggravated  crime 
which  has  been  connected  with  theft.  Upon  an 
indictment  for  arson,  proof  that  property  which  was 
in  the  house  at  the  time  it  was  burnt,  was  soon  after- 
wards found  in  the  possession  of  the  prisoner,  was 
held  to  raise  a  presumption  that  he  was  present  and 
concerned  in  the  offence  (w).  This  particular  fact 
of  presumption  commonly  forms  also  a  material 
element  of  evidence  in  cases  of  murder ;  which 
special  application  of  it  has  often  been  emphatically 
recognized.  It  is  upon  the  same  principle  that  a 
sudden  and  otherwise  inexplicable  transition  from  a 
state  of  indigence  and  a  consequent  change  of  habits, 
or  a  profuse  or  unwonted  expenditure  inconsistent 
with  the  position  in  life  of  the  party,  is  sometimes 
a  circumstance  extremely  unfavourable  to  the  sup- 
position of  innocence  («). 

6.  But  the  rule  must  be  applied  with  discrimination, 
for  the  bare  possession  of  stolen  property,  though 
recent,  uncorroborated  by  other  evidence,  is  some- 
times fallacious  and  dangerous  as  a  criterion  of  guilt. 
Sir  Matthew  Hale  lays  it  down,  that  "  if  a  horse  be 
stolen  from  A.,  and  the  same  day  B.  be  found  upon 
him,  it  is  a  strong  presumption  that  B.  stole  him  ; 
yet,"  adds   that  excellent  lawyer,  "  I   do  remember 

(;«)  Rex  V.  Rickinan,  2  East,  P.  C.  1035  ;  and  see  Rex  v.  Fuller, 
R.  &  R.  308. 

(«)  Rt-x  V.  Burdock  (murder  by  poison),  Bristol  Ass.  Ap.  \2>2,$,cor. 
Sir  Chas.  Wetlierell,  Recorder. 


78  INCULPATORY    MORAL    INDICATIONS. 

before  a  learned  and  very  wary  judge,  in  such  an 
instance  B.  was  condemned  and  executed  at  Oxford 
Assi/.es,  and  yet  within  two  assizes  after,  C,  being 
ai)ijrehcnded  for  another  robbery,  and  convicted, 
upon  his  judgment  and  execution  confessed  he  was 
the  man  that  stole  the  horse,  and  being  closely  pur- 
sued, desired  B.,  a  stranger,  to  walk  his  horse  for 
him,  while  he  turned  aside  upon  a  necessary  occa- 
sion, and  escaped  ;  and  B.  was  apprehended  with  the 
horse  and  died  innocently  "  {0).  A  very  similar  case 
occurred  at  the  Surrey  Summer  Assizes,  1827,  where 
a  young  man  was  convicted  of  stealing  two  oxen. 
The  prisoner,  having  finished  his  apprenticeship  to 
a  butcher  at  Monkwearmouth,  went  to  visit  an  uncle 
at  Portsmouth,  from  whence  he  set  out  to  return 
to  London.  On  the  road  between  Guildford  and 
London,  about  three  o'clock  in  the  morning,  he 
overtook  a  man  riding  upon  a  pony  and  driving  two 
oxen,  who  finding  that  he  was  going  to  London, 
offered  him  five  shillino^s  to  drive  them  for  him  to 
London,  which  he  agreed  to  do,  the  man  engaging 
to  meet  him  at  Westminster  Bridge.  At  Wands- 
worth he  was  apprehended  by  the  prosecutor's  son, 
and  charged  with  stealing  the  oxen.  On  his  appre- 
hension he  assumed  a  false  name,  under  which  he 
was  tried,  to  conceal  his  situation  from  his  friends, 
and  convicted,  but  on  a  representation  of  the  circum- 
stances he  received  a  pardon,  when  on  the  point  of 
being  transported  for  life  (/)  ;  he  had  been  the  dupe 
of  the  real  thief,  who,  finding  himself  closely  pursued, 

{o)  2  Hale,  p.  C.  p.  289. 

{p)  /vex  V.  Cz7/,  O.B.  Sessions  Papers  and  Ann.  Reg.  1827  (Chr.), 
p.  179. 


KECENT  POSSESSION   OF  THE  FRUITS  OF  CRIME.     79 

had  thus  contrived  to  rid  himself  of  the  possession 
of  the  cattle. 

7.  The  rule  under  discussion  is  occasionally 
attended  with  uncertainty  in  its  application,  from  the 
difficulty  attendant  upon  the  positive  identification 
of  articles  of  property  alleged  to  have  been  stolen  ; 
and  it  clearly  ought  never  to  be  applied,  where  there 
is  reasonable  ground  to  conclude  that  the  witnesses 
may  be  mistaken,  or  where  from  any  other  cause 
identity  is  not  satisfactorily  established.  But  the 
rule  is  nevertheless  fairly  and  properly  applied  in 
circumstances  where,  though  positive  identification 
is  impossible,  the  possession  of  the  property  cannot 
without  violence  to  every  reasonable  hypothesis  but 
be  considered  of  a  guilty  character;  as  in  the  case 
of  persons  employed  in  carrying  tea,  sugar,  tobacco, 
and  other  like  articles  from  ships  and  wharves.  Cases 
have  frequently  occurred  of  convictions  of  larceny, 
in  such  circumstances,  upon  evidence  that  the  parties 
were  detected  with  property  of  the  same  kind  upon 
them  recently  after  coming  from  such  places,  although 
the  identity  of  the  property  as  belonging  to  any  par- 
ticular person  could  not  otherwise  be  proved  [q).  On 
this  principle  two  men  were  convicted  of  larceny 
upon  evidence  that  the  prosecutor's  soap-manufac- 
tory, near  Glasgow,  had  been  broken  into  in  the 
night  and  robbed  of  about  120  lbs.  of  yellow  soap, 
and  that  the  prisoners  were  met  on  the  same  night, 
about  eleven  o'clock,  by  the  watchman,  near  the 
centre  of  the  city,  from  whom  they  attempted  to 
escape,  one  bearing  on  his  back  forty  pounds  of  soap 

ig)  2  East,  P.  C.  1035. 


80  INCULPATORY    MORAL    INDICATIONS. 

of  the  same  size,  shape,  and  make  as  that  stolen  from 
the  prosecutor's  premises,  and  the  other  with  his 
clothes  soiled  over  with  the  same  substance,  though 
the  property  could  not  be  more  distinctly  iden- 
tified {;■).  It  is  seldom,  however,  that  juries  are 
required  to  determine  upon  the  effect  of  evidence 
of  the  mere  recent  possession  of  stolen  property  ; 
from  the  very  nature  of  the  case,  the  fact  is  generally 
accompanied  by  other  corroborative  or  explanatory 
circumstances  of  presumption.  If  the  party  have 
secreted  the  property, — if  he  deny  that  it  is  in  his 
possession,  and  such  denial  be  discovered  to  be  false, 
— if  he  cannot  show  how  he  became  possessed  of  it, 
— if  he  give  false,  incredible,  or  inconsistent  accounts 
of  the  manner  in  which  he  acquired  it,  as  that  he 
found  it,  or  that  it  had  been  given  or  sold  to  him  by 
a  stranger,  or  left  at  his  house, — if  he  have  disposed 
of  or  attempted  to  dispose  of  it  at  an  unreasonably 
low  price, — if  he  have  absconded  or  endeavoured  to 
escape  from  justice, — If  other  stolen  property,  or 
housebreaking  tools,  or  other  instruments  of  crime 
be  found  in  his  possession, — if  he  were  seen  near  the 
spot  at  or  about  the  time  when  the  act  was  com- 
mitted,— or  if  any  article  belonging  to  him  be  found 
at  or  near  the  place  where  the  theft  was  committed, 
at  or  about  the  time  of  the  commission  of  the  offence, 
— if  the  impressions  of  his  shoes  or  other  articles  of 
apparel  correspond  with  marks  left  by  the  thieves, — if 
he  have  attempted  to  obliterate  from  the  articles  in 
question  marks  of  identity,  or  to  tamper  with  the 
parties  or  the  officers  of  justice, — these,  and  all  like 

(r)  AV.r    V.    M'-KecJmie    and    Tolmie^   Alison's    Principles    of  the 
Criminal  Law  of  Scotland,  vol.  i.  p.  322. 


UNEXPLAINED    APPEARANCES    OF    SUSPICION.        8l 

circumstances,  are  justly  considered  as  throwing 
light  upon  and  explaining  the  fact  of  possession,  and 
render  it  morally  certain  that  such  possession  can 
be  referable  only  to  a  criminal  origin,  and  cannot 
otherwise  be  rationally  accounted  for  [s). 


Section  5. 

unexplained    appearances   of  suspicion,    and   at- 
tempts to  account  for  them  by  false  repre 
sentations. 

As  a  general  rule,  to  which  the  exceptions  can  be 
but  rare,  it  is  a  reasonable  conclusion,  that  an 
innocent  party  can  explain  suspicious  or  unusual 
appearances,  connected  with  his  person,  dress  or 
conduct ;  and  that  the  desire  of  self-preservation, 
if  not  a  regard  for  truth,  will  prompt  him  to  do  so. 
The  ingenuous  and  satisfactory  explanation  of  cir- 
cumstances of  apparent  suspicion  always  operates 
powerfully  in  favour  of  the  accused,  and  obtains  for 
him  more  ready  credence  when  the  explanation 
may  not  be  easily  verified  (/).  On  the  other  hand, 
the  force  of  suspicious  circumstances  is  augmented, 
whenever  the  party  attempts  no  explanation  of  facts 
which  he  may  reasonably  be  presumed  to  be  able 
and  interested  to  explain.  An  old  man  on  his  way 
home  from  market,  where  he  had  stayed  late,  was 
attacked,  thrown  down,  and  robbed  by  three  men, 
one    of   whom    he    wounded    in    the    struggle  with 

(s)  Upon  the  subject-matter  of  this  section  compare  Roscoe's 
Criminal  Evidence  (12th  ed.)  pp.  17  and  783,  and  Russell  on  Crimes 
(6th  ed.)  vol.  ii.  pp.  287  e/  seq.  and  vol.  iii.  pp.   355  et  seq 

(/)  See  the  case  oi  Reg.  v.  Pook,  pp.  250-252,  infra. 
C.E.  G 


82  INCULPATORY    MORAL    INDICATIONS. 

a  clasp-knife.  Upon  the  apprehension  of  one  of 
the  robbers  at  the  house  of  his  mother,  he  was 
dressed  in  a  new  pair  of  trousers,  and  the  constable 
found  in  a  room  upstairs,  between  the  bed  and 
the  mattress,  a  pair  of  trousers  with  two  long  cuts  in 
one  thiL;h,  one  of  which  had  penetrated  through  the 
lini^L,^  and  was  stained  with  blood  at  that  spot  ;  and 
the  holes  had  been  sewed  with  thread  which  was 
not  discoloured,  showing  that  the  blood  must  have 
been  applied  to  the  cloth  previous  to  the  repair,  and 
a  corresponding  cut  bound  over  with  plaisters  was 
found  on  the  prisoner's  thigh.  He  refused  to  give 
any  explanation  of  the  wound  or  of  the  cuts  in  the 
garments,  and  was  convicted  and  transported  [it). 

But  circumstances  of  suspicion  merely,  without 
more  conclusive  evidence,  are  not  sufficient  to  justify 
conviction,  even  though  the  party  offer  no  explanation 
of  them.  Two  women  were  indicted  for  colouring 
a  counterfeit  shilling  and  sixpence,  and  a  man  as 
an  accessory  ;  and  the  evidence  against  him  was 
that  he  visited  the  women  once  or  twice  a  week,  that 
the  rattling  of  copper  money  was  heard  while  he  was 
with  them,  that  once  he  was  counting  something  just 
after  he  came  out,  that  on  going  to  the  room  just 
after  their  apprehension,  he  resisted  being  stopped, 
and  jumped  over  a  wall  to  escape,  and  that  there 
were  found  upon  him  a  bad  three-shilling-piece  and 
five  bad  sixpences  :  upon  a  case  reserved,  the  judges 
thought  the  evidence  too  slight  to  convict  him  (,r). 

{ii)  Rex  V.  Daiuttry,  York  Sp.  Ass.  1841. 

{x)  Rex  V.  Isaacs,  Russell  on  Crimes  (6th  ed.   by  Smith  &  Keep), 
vol.  i.  p.  2 1 6.     Sed  quccre. 


UNEXPLAINED    APPEARANCES    OF    SUSPICION.        83 

So  natural  and  forcible  is  this  rule  of  presumption, 
that  the  guilty  are  instinctively  compelled  to  en- 
deavour to  evade  its  application,  by  giving  some 
explanation  or  interpretation  of  adverse  facts,  con- 
sistent, if  true,  with  innocence  ;  but  its  force  is 
commonly  aggravated  by  the  improbability,  or 
absurdity  even,  of  such  explanations,  or  the  incon- 
sistency of  them  with  admitted  or  incontrovertible 
facts.  All  such  false,  incredible,  or  contradictory 
statements,  if  disproved,  or  disbelieved,  are  not 
simply  neutralized,  but  become  of  a  substantive 
inculpatory  effect.  Even  in  such  circumstances, 
however,  guilt  cannot  be  safely  inferred,  unless 
such  a  substratum  of  evidence,  direct  or  circum- 
stantial, has  been  laid  as  creates  an  independent 
prima  facie  case  against  the  prisoner  i^y).  On  the 
trial  for  the  murder  by  poison  of  a  female,  whom 
the  prisoner  alleged  to  have  died  from  the  effects 
of  a  draught  taken  by  her  in  anger  during  an 
altercation  between  them,  Mr.  Baron  Parke  told 
the  jury  that  it  was  for  them  to  say  whether  the 
falsehoods  the  prisoner  had  told,  did  not  show  that 
he  was  conscious  that  he  had  been  guilty  of  some 
act  that  required  concealment  ;  that  it  was  very 
true  he  might  not  wish  it  to  be  known  he  had  been 
visiting  a  woman  who,  there  was  good  reason  to 
believe,  had  formerly  been  his  mistress  ;  but  that, 
if  he  was  an  innocent  man,  and  had  been  present 
at  the  death,  one  would  have  supposed  he  would 
have  disclosed   it   immediately   and  called   in  some 

{y)  Per  Mr.  Justice  Littledale  in  Rex  v.  Clark,  Warwick  Summ. 
Ass.  1 83 1.  It  would  be  more  accurate  to  say  "a  substantial  and 
independent  prinid  facie  case." 

G    2 


84  INCULPATORY    MORAL    INDICATIONS. 

assistance.  They  had  here  two  iintrutlis,  tliat  he 
meant  to  dine  at  the  west  end  of  the  town  and  did 
not ;  and  iiis  denial  that  he  had  been  out  of  London 
that  evening ;  these  he  said,  were  very  material 
matters  for  their  inquiry,  bearing  in  mind  that  upon 
the  evidence  there  was  a  very  ample  case  for  grave 
consideration,  to  show  that  the  deceased  died  of 
prussic  acid,  and  that  the  prisoner  was  present  in 
the  house  at  the  moment  of  that  death.  His  Lord- 
ship added,  that  if  the  prisoner's  representation  had 
been  true,  that  the  deceased  had  poisoned  herself, 
one  would  have  supposed  that  he  would  have  taken 
the  first  opportunity,  having  been  present  at  the 
time  this  occurred,  of  exonerating  himself  from  it, 
by  making  this  declaration  to  the  first  person  he 
met ;  one  would  expect,  if  he  had  been  a  man 
of  the  least  cordial  feeling,  he  would  have  waited 
to  see  whether  it  was  true  or  not  that  she  had  taken 
this  poison,  and  called  for  assistance,  instead  of 
which,  he  is  proved  to  have  gone  in  a  short  time 
to  London,  and  when  he  got  to  London  he  is 
proved  to  have  denied  altogether  that  he  had  been 
at  Slough.  You  must  judge,  said  the  learned  Baron, 
of  the  truth  of  the  case  against  a  person  by  all  his 
conduct  taken  together  {z). 

An  important  consideration  in  this  connection  is 
the  time  at  which  and  the  occasion  upon  which  the 
explanation  of  suspicious  circumstances  or  other 
matter  of  defence  within  the  knowledo-e  of  an 
accused  person   is   propounded.      Has  it   been   put 

(z)  Reg.  V.  Taivell,  Aylesbury  Sp.  Ass.  1845.     2  C.  &  K.  309,  note. 
I  Woodall's  Celebrated  Trials,  162,  and  see  pp.  313-317,  infra. 


UNEXPLAINED    APPEARANCES    OF    SUSPICION.        85 

forward  at  the  natural  time  ?  In  some  instances 
the  explanation  or  matter  of  defence  would  spring 
unbidden  to  the  lips  of  an  innocent  man  the  moment 
he  was  accused  of  the  crime  in  question.  In  others 
it  would  be  natural  enough  that  he  would  require 
time  to  collect  his  thoughts  and  exercise  his  memory. 
In  all  cases,  if  it  involves  allegations  of  fact,  the 
truth  of  which  can  be  inquired  into,  the  value  to  be 
attached  to  it  will  depend,  and  ought  to  depend, 
largely  upon  whether  the  opportunity  for  inquiry  is 
afforded  by  the  person  inculpated.  If  the  oppor- 
tunity be  given,  and  the  facts  alleged  are  not  contra- 
dicted by  evidence,  the  natural  and  proper  inference 
is  that  they  are  true,  and  the  accused  person  ought 
to  have  the  full  benefit  of  such  an  inference.  If 
they  are  suppressed  until  inquiry  is  impossible, 
while  it  is  too  much  to  say  that  they  ought  not  to  be 
listened  to  and  considered,  the  credit  to  be  given  to 
them  and  to  any  evidence  by  which  they  may  be 
supported  ought  to  be  very  largely  discounted. 

There  are  three  occasions  upon  which  every  man 
who  is  tried  upon  indictment  has  had  the  opportunity 
of  giving  any  explanation  of  his  conduct  or  of  men- 
tioning any  other  defence  he  may  have  :  first,  when 
he  is  originally  charged,  whether  by  an  employer  or 
ether  person  having  legitimate  occasion  to  speak  to 
him  upon  the  subject  of  the  charge,  or  by  a  police 
officer  making  inquiries  or  effecting  his  arrest ; 
secondly,  when  formally  charged  at  the  police  station ; 
and  thirdly,  after  the  evidence  has  been  given 
against  him  before  the  magistrates  and  he  is 
offered  the  choice  whether  he  wishes  to  say  anything 


86  INCULPATORY    MORAL    INDICATIONS. 

in  answer  to  tlie  charge  or  not.  The  last  is 
of  course  the  most  important  of  these  occasions. 
It  is  a  common  trick  of  criminal  advocacy  to  say  in 
answer,  "  I  reserve  my  defence  ;  I  call  no  witnesses 
here,  and  I  offer  no  evidence,"  and  the  criminal 
classes  themselves  have  caught  it  from  their  advisers, 
and  largely  make  use  of  the  phrase. 

Such  a  beginning  is  to  say,  the  very  least,  a  bad 
introduction  to  a  true  story.  Occasionally,  the 
explanation  or  defence  is  nevertheless  true,  and 
the  suspicion  with  which,  under  such  circumstances, 
it  ought  to  be  regarded  is  due  to  very  bad  advice  ; 
but  this  is  a  rare  exception,  and  usually  such  an 
answer  [jiven  before  committal  means  that  there  is 
no  defence,  or  that  a  story  is  in  contemplation  which 
will  not  bear  investigation. 

It  is  very  necessary  that  such  considerations 
should  be  borne  in  mind.  There  is  a  natural  and 
a  wholesome  tendency  in  most  men  to  give  to  a 
prisoner  who  is  often  a  man  with  small  or  no  means, 
and  who  speaks  at  a  disadvantage  necessarily  inci- 
dent to  his  position,  every  possible  consideration, 
and  plausible  stories  told  from  the  dock  by  persons, 
many  of  whom  are  consummate  actors  [a),  are  apt  to 
meet  with  more  rather  than  with  less  of  the  attention 
they  deserve.     Want  of  means  to  bring  witnesses  is 

(a)  On  one  occasion  the  Editor  offered  a  prisoner  an  adjournment 
of  the  trial  in  order  that  the  witnesses,  who  he  said  could  prove  his 
innocence,  might  be  produced.  The  offer  was  accepted  with  an 
appearance  of  effusive  gratitude,  which  made  it  appear  almost  an 
unnecessary  ceremony.  The  witnesses  came  the  next  day,  when  it 
appeared  that  the  story  was  a  fabrication  from  beginning  to  end. 


UNEXPLAINED    APPEARANCES    OF    SUSPICION.        87 

constantly  allei^ed.  This  may  be  a  legitimate  excuse 
for  not  bringing  the  witnesses.  It  is  none  for  the 
failure  to  mention  at  the  right  time  and  upon  the 
natural  occasion,  the  facts  which  it  is  alleged  that 
these  witnesses  could  prove,  in  which  case  the  omis- 
sion on  the  part  of  the  prosecution  to  investigate 
and  bring  evidence  of  the  real  facts  will  serve  the 
prisoner  quite  as  effectually  as  the  witnesses  them- 
selves could  do.  Of  course,  ignorance  or  want  of 
education  on  the  part  of  a  prisoner  must  be  taken 
into  account,  and  all  such  considerations  as  have 
been  pointed  out  should  be  applied  with  caution  and 
judgment.  But  they  are  important,  and  are  of  very 
general  application.  The  most  ignorant  man  in  the 
world,  accused  of  committing  a  crime  in  London  the 
day  before  yesterday,  if  he  had  really  been  in  Bir- 
mingham at  the  time  in  question,  could  scarcely  fail 
to  say  so  ;  and  the  same  observation  applies  to  many 
less  simple  illustrations  of  the  matter  under  discussion. 

There  are  few  limits  to  the  ingenuity  and  plausi- 
bility of  many  of  the  criminal  classes — a  fact  of  which 
a  judge  has  had  much  more  experience  than  jurors 
can  possibly  have— and  if  a  plausible  falsehood  be 
impressively  told  from  the  dock  or  by  the  prisoner 
in  the  witness  box,  and  told  upon  his  trial  for  the 
nrst  time,  there  may  be  no  answer  to  it  possible 
except  that  it  is  then  told  for  the  first  time.  Occa- 
sionally it  is  possible  to  test  a  story  told  under  such 
circumstances,  especially  since  the  Act  which  has 
permitted  jurors,  on  trials  for  felonies  other  than 
murder,  to  separate  before  giving  their  verdict, 
and  has  thus  made  an  adjournment  possible  if  there 


88  INCULPATORY    MORAL    INDICATIONS. 

is  time  for  it  before  the  conclusion  of  the  particular 
assizes  or  sessions.  The  Editor  has  made  use  from 
time  to  time  of  such  a  power  under  such  circum- 
stances, and  the  result  has  almost,  if  not  quite, 
universally  been  to  discredit  a  story  reserved  for 
production  on  the  day  of  trial. 

The  following-  is  a  striking  instance  of  the  kind. 
A  man  named  Williams  was  tried  for  breaking  into 
a  lady's  house  at  Salisbury  on  the  9th  May,  1901. 
Six  or  seven  pounds  in  sovereigns,  a  watch,  a  ring,  a  set 
of  false  teeth,  and  other  articles  were  stolen  from  the 
house  between  i  and  4  p.m.,  during  the  absence  of 
the  inmates  at  a  bazaar,  which  was  opened  by  Lord 
Roberts.  Evidence  was  given  by  the  postmaster  at 
Salisbury  that  a  person,  whom  he  identified  as  the 
prisoner,  had,  about  1.50,  brought  to  the  post-office 
for  despatch  a  brown  paper  parcel.  After  his  depar- 
ture the  postmaster  had  compulsorily  registered  it, 
because  it  appeared  to  him.  to  contain  valuables. 
Five  minutes  later  the  same  man  returned,  bought 
three  postal  orders  for  ^i  each,  and  paid  for  them 
with  three  sovereigns  and  the  odd  pence.  The 
parcel  was  directed  to  Mrs.  Williams,  8,  Harvey 
Street,  Hyde  Road,  Hoxton.  Upon  the  robbery 
being  discovered,  the  police  at  Salisbury  telegraphed 
to  the  police  at  Hoxton,  and  the  next  morning,  when 
the  postman  called  at  8,  Harvey  Street,  a  detective 
followed  him  into  the  house,  and  took  possession  of 
a  registered  brown  paper  parcel  and  a  letter  which 
were  about  to  be  delivered  to  the  prisoner,  who  was 
standing  on  the  staircase.  His  wife  was  in  the 
house.       He  was  arrested  and  taken  to  Salisbury, 


UNEXPLAINED    APPEARANCES    OF    SUSPICION.        89 

where  the  parcel  was  opened,  and  found  to  contain 
the  stolen  watch,  ring,  and  false  teeth.  The  letter 
contained  the  three  postal  orders  procured  at  Salis- 
bury, and  three  others  for  a  like  amount  issued  on 
the  same  9th  May,  at  Winterbourne  Gunner,  four 
miles  from  Salisbury. 

The  prisoner  had  made  no  answer  to  the  charge 
at  the  police  station,  and  before  the  magistrates  had 
simply  denied  his  guilt.  At  the  trial,  however,  he 
went  into  the  witness  box,  and  swore  that  he  was  at 
Battersea  all  day  on  the  9th  May.  He  was  a  person 
against  whom  nothing  had  been  recorded,  and  was 
of  respectable  appearance  and  plausible  manners. 
It  was  strongly  urged  on  his  behalf  that  it  was  a 
case  of  mistaken  identity,  that  no  evidence  had  been 
eiven  of  his  having  been  at  Winterbourne  Gunner, 
or  obtained  the  postal  order  issued  from  that  office, 
and  that  the  real  thief  was  the  unknown  man  who 
had  obtained  the  Winterbourne  Gunner  orders. 
The  judge  observed  that  had  the  prisoner  denied  at 
an  earlier  stage  that  he  had  been  at  Salisbury  on 
the  9th  May,  the  police  would  no  doubt  have  given 
evidence  of  what  had  happened  at  Winterbourne 
Gunner,  and  that  inquiries  there  would  have  probably 
resulted  in  the  demonstration  either  of  the  prisoner's 
guilt  or  of  his  innocence.  The  trial  was  adjourned 
for  a  couple  of  hours,  at  the  end  of  which  time 
the  postmistress  from  Winterbourne  Gunner  was 
produced.  She  swore  that  the  prisoner  had  come  to 
her  post-office  about  four  o'clock,  and  had  bought 
the  three  postal  orders  contained  in  the  letter.  The 
nearest  railway  station  to  Winterbourne  Gunner  is 
Porton,  which  is  about  a  mile  offi     The  keeper  of  a 


go  INCULPATORY    MORAL    INDICATIONS. 

hotel  at  Porton  proxcd  that  the  prisoner  and  another 
man  had  called  at  liis  hotel,  about  a  quarter  past 
four,  had  gone  into  the  commercial  room  and  written 
letters,  and  gone  out  again.  They  had  then  returned 
and  gone  to  the  railway  station,  which  is  close  by, 
a  little  after  5.  A  railway  porter  identified  the 
prisoner  as  one  of  two  men  who  had  left  together  by 
the  5.32  train. 

The  prisoner  had  asserted  that  he  was  in  Hyde 
Road  on  the  evening  of  the  9th  May,  and  had  seen 
the  detective  who  arrested  him  the  next  morning 
in  the  streets,  describing  his  dress.  The  detective 
admitted  that  he  was  there  soon  after  9,  and  it  was 
suggested  that  there  was  not  time  for  the  prisoner 
to  have  reached  Hoxton  by  that  hour  if  he  had  been 
at  Porton  at  5.30,  particularly  as  the  trains  from 
Salisbury  on  that  night  were  very  full.  Of  course 
no  railway  official  could  be  called  to  show  at  what 
time  the  train  leaving  Porton  at  5.32  arrived  at 
Waterloo.  It  happened,  however,  that  the  High 
Sheriff,  who  was  in  court,  had  travelled  to  London 
by  the  very  train  in  question,  and  he  deposed  that 
the  train  arrived  at  Waterloo  about  8,  which  left  an 
ample  margin  for  arrival  at  Hoxton  before  9.  Thus 
the  prisoner's  story  and  the  suggestions  made  on 
his  behalf  were  all  completely  disproved,  and  the 
prisoner  was  convicted  {^d). 

Allowance  must  nevertheless  be  made  for  the 
weakness  of  human  nature,  and  for  the  difficulties 
which    may   attend    the   proof  of  circumstances   of 

{b)    Rex    V.    TJiomas    Williams,  Salisbury  Summer  Assize,    190 1, 
coram  Wills,  J . 


UNEXPLAINED    APPEARANCES    OF    SUSPICION.  QI 

exculpation  (^)  ;  and  care  must  be  taken  that  cir- 
cumstances are  not  erroneously  assumed  to  be 
suspicious  without  sufficient  reason  {^d). 


Section  6. 
indirect  confessional  evidence. 

Although  the  subject  of  direct  confession  does 
not  fall  within  the  province  of  this  essay,  it  is 
necessary  to  advert  to  some  of  the  principal  rules 
which  relate  to  that  important  head  of  moral 
evidence  ;  because  they  are  of  great  moment  in 
their  application  to  such  particulars  of  circumstantial 
evidence  as  are  only  indirectly  in  the  nature  of 
confessional  evidence. 

A  voluntary  confession  of  guilt,  if  it  be  full,  con- 
sistent, and  probable,  is  justly  regarded  as  evidence 
of  the  highest  and  most  satisfactory  nature  (<?).  Self- 
love,  the  mainspring  of  human  conduct,  will  usually 
prevent  a  rational  being  from  making  admissions 
prejudicial  to  his  interest  and  safety,  unless  when 
caused  by  the  promptings  of  truth  and  conscience. 

By  the  law  of  England,  a  voluntary  and  unsus- 
pected confession  is  clearly  sufficient  to  warrant 
conviction,  wherever  there  is  independent  proof  of 

(c)  See  Rexv.  Gill,  Ann.  Reg.  1S27  (Chr.),  p.  179.  Sessions  Papers. 
And  see  2  Hale,  P.  C.  p.  2S9. 

{ii)  See  Rex  v.  Looker,  p.  242,  infra,  and  Rex  v.  Thorntoji,  p.  244, 
i7tj'ra. 

(e)  3  Mascardus  De  Probationibus,  Concl.  XV.,  xvi. ;  Rex  v.  War- 
rickshall,  I  Leach,  C.  C.  263  ;  Greenleafs  L.  of  Ev.  §-219. 


92  INCULPATORY    MORAL    INDICATIONS. 

tlie  coi'pus  delicti.  According  to  some  authorities, 
confession  alone  is  a  sufficient  ground  for  conviction, 
even  in  the  absence  of  any  such  independent 
evidence  ;  but  the  contrary  opinion  is  most  in 
accordance  with  the  general  principles  of  reason  and 
justice,  the  opinions  of  the  best  writers  on  criminal 
jurisprudence,  and  the  practice  of  other  enlightened 
nations,  and  may  now  be  accepted  as  settled 
law  (/").  The  cases  adduced  in  support  of  the 
doctrine  that  confession  without  other  proof  of  the 
corpus  delicti  is  sufficient,  are  not  very  decisive,  since 
in  all  of  them  there  appears  to  have  been  some 
evidence,  though  slight,  of  confirmatory  circum- 
stances, independently  of  the  confession  (^). 

Judicial  history  presents  warning  of  the  danger 
of  placing  implicit  dependence  upon  abundant  con- 
fession even  where  exempt  from  all  suspicion  of 
coercion,  physical  or  moral,  or  other  sinister  influ- 
ence. How  greatly  then  must  such  danger  be 
aggravated,  where  confession  constitutes  the  only 
evidence  of  the  fact  of  a  corpus  delicti ;  and  how 
incalculably  greater  in  such  cases  is  the  necessity  for 
the  most  rigorous  scrutiny  of  all  collateral  circum- 
stances, which  may  induce  a  false  confession  !  The 
agonies  of  torture,  the  dread  of  their  infliction,  the 
hope  of  escaping  the  rigours  of  slavery  or  the  hard- 
ships of  military  service,  a  weariness  of  existence, 

(/)  Best  on  Presumptions  p.  330,  and  the  cases  cited  ;  i  Green- 
leafs  L.  of  Ev.  §  217  ;  Alison's  Principles  of  the  Criminal  Law  of 
Scotland,  p.  325  ;  Code  Penal  d'Autriche,  partie  i,  §  2,  ch.  x. 

{g)  Rex  V.  Fisher^  i  Leach,  C.  C.  p.  31 1  ;  Rex  v.  Eldridge,  R.  &  R. 
440  ;  Rex  V.  Falkner,  ib.  481  ;  Rex  v.  White,  ib.  508;  Rex  v.  Tippett, 
ib.  509  J  I  Greenleaf's  L.  of  Ev.  §  217. 


INDIRECT    CONFESSIONAL    EVIDENCE.  93 

self-delusion,  the  desire  to  shield  a  guilty  relative  or 
friend  from  the  penalties  of  justice  {/i),  the  impulses 
of  despair  from  the  pressure  of  strong  and  apparently 
incontrovertible  presumptions  of  guilt,  the  chance  of 
escaping  unmerited  punishment  and  disgrace,  the 
hope  of  pardon — these  and  numerous  other  induce- 
ments have  not  unfrequently  operated  to  produce 
unfounded  confessions  of  guilt 

Innumerable  are  the  instances  on  record  of  con- 
fession extracted  "by  the  deceitful  and  dangerous 
experiment  of  the  criminal  qiicestion,  as  it  is  em- 
phatically styled  "  (z),  of  offences  which  were  never 
committed,  or  not  committed  by  the  persons  making 
confession  {k).  Nor  have  such  instances  been  wanting 
on  the  continent  of  Europe  even  in  the  present 
century. 

When  Felton,  upon  his  examination  at  the  Council 
Board,  declared,  as  he  had  always  done,  that  no  man 
livinor  had  instigated  him  to  the  murder  of  the  Duke 
of  Buckingham,  the  Bishop  of  London  said  to  him, 
"  If  you  will  not  confess  you  must  go  to  the  rack." 
The  man  replied,  "  If  it  must  be  so,  I  know  not  whom 
I  may  accuse  in  the  extremity  of  the  torture, — Bishop 
Laud  perhaps,  or  any  lord  at  this  Board  "  (/).  "  Sound 
sense,"  observed  the  excellent  Sir  Michael  Foster, 
"  in  the  mouth  of  an  enthusiast  and  a  ruffian  "  {i7t). 

iji)  Chitty's  Criminal  Law,  vol.  i.  p.  85. 

(«")  Gibbon's  Decline  and  Fall,  ch.  xvii. 

{k)  Jardine  on  the  Use  of  Torture  in  the  C.  L.  of  England^  pp.  5-7  ; 
and  see  Fortescue  De  Laudibus  Legum  Anglias,  ch.  22. 

(/)  Rushworth's  Collections,  vol.  i.  p.  638,  referred  to  in  Jardine,  p.  1 1. 

(;«)  Foster's  Discourses  on  the  Crown  Law,  Disc.  \.  ch.  3,  s.  8  (3rd 
ed.  p.  244). 


94  INCULPATORY    MORAL    INDICATIONS. 

Not  less  repugnant  to  policy,  justice,  and  humanity 
is  the  moral  torture  to  which  in  some  (perhaps  in 
most)  of  the  nations  of  Europe,  persons  suspected 
of  crime  are  subjected,  by  means  of  searching, 
rigorous,  and  insidious  examinations,  conducted  by 
skilful  adepts  in  judicial  tactics,  and  accompanied 
sometimes  even  by  dramatic  circumstances  of  terror 
and  intimidation  (;/). 

Lord  Clarendon  gives  a  circumstantial  account 
of  the  confession  of  a  Frenchman  named  Hubert, 
after  the  fire  of  London,  that  he  had  set  the  first 
house  on  fire,  and  had  been  hired  in  Paris  a  year 
before  to  do  it.  "  Though,"  says  he,  "  the  Lord 
Chief  Justice  told  the  King  that  '  all  his  discourse 
was  so  disjointed  he  did  not  believe  him  guilty,'  yet 
upon  his  own  confession  the  jury  found  him  guilty, 
and  he  was  executed  accordingly "  ;  the  historian 
adds,  "  though  no  man  could  imagine  any  reason 
why  a  man  should  so  desperately  throw  away  his 
life,  which  he  might  have  saved  though  he  had  been 
guilty,  since  he  was  accused  only  upon  his  own 
confession,  yet  neither  the  judges  nor  any  present 
at  the  trial  did  believe  him  guilty,  but  that  he  was 
a  poor  distracted  wretch,  weary  of  life,  and  chose 
to  part  with  it  this  way"(^). 

(«)  See  the  case  of  Riembaur,  a  Bavarian  priest,  charged  with 
murder,  in  Narratives  of  Remarkable  Criminal  Trials,  by  Feuerbach, 
vide  supra,  p-  3 1  • 

ip)  Clarendon's  Life  and  Continuation,  vol.  lii.  p.  94  (Oxford  ed. 
1827).  Sir  Samuel  Romilly  (Memoirs,  vol.  ii.  p.  182)  relates  a  case  in 
his  own  experience,  where  an  innocent  man  was  erroneously  executed 
in  pursuance  of  the  sentence  of  a  court-martial,  on  a  charge  of  mutiny, 
solely  on  account  of  his  defence  being  a  confession  and  an  appeal  for 
mercy. 


INDIRECT    CONFESSIONAL    EVIDENCE.  95 

A  very  remarkable  case  of  this  nature  was  that 
of  the  two  Boorns,  convicted  in  the  Supreme  Court 
of  Vermont  in  September  term,  18 19,  of  tlie  murder 
of  Russell  Colvin,  May  loth,  1812.  It  appeared  that 
Colvin,  who  was  the  brother-in-law  of  the  prisoners, 
was  a  person  of  a  weak  and  not  perfectly  sound 
mind  ;  that  he  was  considered  burdensome  to  the 
family  of  the  prisoners,  who  were  obliged  to  support 
him ;  that  on  the  day  of  his  disappearance,  being 
in  a  distant  field,  where  the  prisoners  were  at  work, 
a  quarrel  broke  out  between  him  and  them,  and  that 
one  of  them  struck  him  a  violent  blow  on  the  back 
of  the  head,  with  a  club,  which  felled  him  to  the 
ground.  Some  suspicions  arose,  at  that  time,  that  he 
was  murdered;  which  were  increased  by  the  finding 
of  his  hat,  in  the  same  field,  a  few  months  afterwards. 
These  suspicions  in  process  of  time  subsided  ;  but 
in  18 19,  one  of  the  neighbours  having  repeatedly 
dreamed  of  the  murder,  with  great  minuteness  of 
circumstance,  both  in  regard  to  his  death  and  the 
concealment  of  his  remains,  the  prisoners  were 
vehemently  accused,  and  generally  believed  guilty 
of  the  murder.  Upon  strict  search,  the  pocket-knife 
of  Colvin,  and  3.  button  of  his  clothes,  were  found 
in  an  old  open  cellar  in  the  same  field  ;  and  in  a 
hollow  stump  not  many  rods  from  it,  were  discovered 
two  nails  and  a  number  of  bones  believed  to  be 
those  of  a  man.  Upon  this  evidence,  together  with 
the  deliberate  confession  of  murder  and  concealment 
of  the  body  in  those  places,  they  were  convicted,  and 
sentenced  to  die.  On  the  same  day  they  applied 
to  the  legislature  for  a  commutation  of  the  sentence 
of  death,  to  that  of  perpetual  imprisonment ;   which 


g6  INCULPATORY    MORAL    INDICATIONS. 

as  to  one  only  of  them  was  granted.  The  con- 
fession being  now  withdrawn  and  contradicted,  and 
a  reward  offered  for  the  discovery  of  the  missing 
man,  he  was  found  in  New  Jersey,  and  returned 
home  in  time  to  prevent  the  execution.  He  had  fled 
for  fear  that  they  would  kill  him.  The  bones  were 
those  of  an  animal.  The  prisoners  had  been  advised 
by  some  misjudging  friends,  that,  as  they  would 
certainly  be  convicted  upon  the  circumstances 
proved,  their  only  chance  for  life  was  by  a  com- 
mutation of  punishment,  and  that  this  depended 
on  their  making  a  penitential  confession,  and  there- 
upon obtaining  a  recommendation  to  mercy  (/» ). 

A  more  recent  case  which  created  some  stir  at 
the  time,  and  appears  to  have  ended  in  a  miscarriage 
of  justice,  illustrates  the  extraordinary  ideas  which 
induce  persons  to  make  false  confessions.  In  April, 
1879,  two  men,  named  Brannagan  and  Murphy, 
were  convicted  at  Newcastle  Assizes  of  burglary, 
with  shooting,  at  Edlingham  Vicarage.  In  the 
autumn  of  1888,  nearly  ten  years  later,  two  men, 
named  Edgell  and  Richardson,  confessed  that  they 
committed  the  crime,  and  they  were  convicted  and 
sentenced  to  five  years  penal  servitude,  while  Murphy 
and  Brannagan,  who  had  received  life  sentences, 
were  pardoned  and  compensated.  In  February, 
1889,  several  police  officers  were  charged  with 
perjury  at  the  first  trial  in  1879.  Edgell  and 
Richardson    were    the   principal    witnesses    against 

{p)  I  Greenleaf's  L.  of  Ev.  §  214,  note;  and  see  the  case  of  the 
Perry s^  infra^  p.  282,  and  an  American  case  in  Wharton's  Criminal  L. 
of  the  U.  S.  p.  315,  and  a  case  mentioned  in  i  Leach,  C.  C.  p.  264,  note. 


INDIRECT    CONFESSIONAL    EVIDENCE.  gy 

them,  and  upon  cross-examination  admitted  that 
they  had  been  told  by  a  soHcitor,  before  they  con- 
fessed, that  they  could  not  be  punished,  as  two 
other  men  had  already  been  convicted  of  the  same 
offence  (^).  The  police  were  acquitted,  Mr.  Justice 
Denman  saying,  in  his  summing  up,  that  he  had 
seldom  seen  a  case  in  which  the  conclusion  seemed 
more  certain  than  in  the  trial  of  1879,  and  suggested 
that  the  case  against  Murphy  and  Brannagan  was, 
at  the  time  he  was  speaking,  even  stronger  than  in 
1879,  when  they  were  convicted.  There  was  a 
general  opinion  at  the  time  that  the  confession  of 
Edgell  and  Richardson  was  part  of  a  scheme  to  get 
the  other  two  men  released. 

The  State  Trials  contain  numerous  confessions  of 
witchcraft,  and  abound  with  absurd  and  incredible 
details  of  communications  with   evil   spirits,  which 

{q)  A  curious  vulgar  error ;  a  distortion  of  the  fact  that  the  same 
person  cannot  be  tried  twice  for  the  same  offence.  A  remarkable 
instance  of  it  occurred  after  the  trial  of  four  men  at  the  Derby  Autumn 
Assizes,  1889,  before  Wills,  J.,  for  a  violent  assault  upon  a  constable 
during  a  poaching  affray  {Reg.  v.  Shaw  and  others,  13  Dec.  1889). 
They  were  convicted.  Soon  after  their  conviction,  two  or  three 
other  men,  believing  that  they  could  not  be  tried  for  the  offence 
of  which  Shaw  and  his  companions  had  been  convicted,  began  io 
boast  that  it  vv'as  they  who  had  beaten  the  constable.  A  petition  was 
then  presented  to  the  Home  Secretary  on  behalf  of  the  convicted  men, 
and  a  prosecution  of  the  second  batch  was  instituted.  This  case  was 
tried  before  Hawkins,  J.  The  manner  in  which  the  evidence  of  the 
confessions  had  been  obtained  by  the  solicitor  who  had  defended  the 
first  four  men  was  open  to  serious  observation,  and  the  second  set 
were  acquitted.  Enough,  however,  had  been  ascertained  in  the  course 
of  the  most  careful  and  elaborate  inquiries  instituted  by  the  Home 
Office  to  make  it  doubtful,  at  least,  whether  the  evidence  of  the  injured 
constable  as  to  the  identity  of  the  first  four  men  could  be  relied  upon  ! 
and  they  were  released. 

C.E.  H 


gS  INCULPATORY    MORAL    INDICATIONS. 

only  show  that  the  parties  were  either  impostors,  or 
the  invokintary  victims  of  invincible  self-delusion. 
One  kind  of  false  confession,  that  namely  of  being  a 
deserter,  is  so  common,  as  to  have  been  made  the 
subject  of  penal  repression  by  rendering  the  offender 
liable  to  be  treated  as  a  rogue  and  vagabond,  and  to 
be  imprisoned  for  any  period  not  exceeding  three 
months  (r). 

A  distinguished  foreign  lawyer  well  observes,  that 
"  whilst  such  anomalous  cases  ought  to  render 
courts  and  juries  at  all  times  extremely  watchful  of 
every  fact  attendant  on  confessions  of  guilt,  the 
cases  should  never  be  invoked  or  so  urged  by  the 
accused's  counsel  as  to  invalidate  indiscriminately  all 
confessions  put  to  the  jury,  thus  repudiating  those 
salutary  distinctions  which  the  Court,  in  the  judicious 
exercise  of  its  duty,  shall  be  enabled  to  make. 
Such  a  use  of  these  anomalies,  which  should  be 
regarded  as  mere  exceptions,  and  which  should  speak 
only  in  the  voice  of  warning,  is  no  less  unprofessional 
than  impolitic,  and  should  be  regarded  as  offensive 
to  the  intelligence  both  of  the  Court  and  jury  "(i'). 

It  is  essential  to  justice,  that  a  confessional  state- 
ment, if  it  be  consistent,  probable,  and  uncontradicted, 
should  be  taken  together,  and  not  distorted,  or  but 
partially  adopted.  "  It  is  a  rule  of  law,"  said  Lord 
Ellenborough,  "  that  when  evidence  is  given  of  what 

{r)  44  &  45  Vict.  ch.  58,  sections  27  (3)  and  152  (The  Army  Act, 
1881),  following  20  Vict.  ch.  13,  s.  49,  which  was  repealed  by  38  &:  39 
Vict.  ch.  66. 

(s)  I  Hoffman's  Course  of  Legal  .Study,  367. 


INDIRECT    CONFESSIONAL    EVIDENCE.  QQ 

a  party  has  said  or  sworn,  all  of  it  is  evidence  (sub- 
ject to  the  consideration  of  the  jury,  however,  as  to 
its  truth),  coming,  as  it  does,  in  one  entire  form 
before  them  ;  but  you  may  still  judge  to  what  parts 
of  the  whole  you  can  give  credit ;  and  also  whether 
that  part  which  appears  to  confirm  and  fix  the 
charge  does  not  outweigh  that  which  contains 
the  exculpation "  (/).  On  the  trial  of  a  man  for 
a  murder  committed  twenty-four  years  before,  the 
principal  inculpatory  evidence  consisted  of  his 
confession,  which  stated  in  substance  that  he  was 
present  at  the  murder,  but  went  to  the  spot  without 
any  previous  knowledge  that  a  murder  was  intended, 
and  took  no  part  in  it.  It  was  urged  that  the 
prisoner's  concurrence  must  be  presumed  from  his 
presence  at  the  murder,  but  Mr.  Justice  Littledale 
held  that  the  statement  must  be  taken  as  a  whole  ; 
and  that  so  qualified,  it  did  not  in  fairness  amount 
to  an  admission  of  the  guilt  of  murder  (//) ;  and 
where  the  prisoner's  declaration,  in  which  she 
asserted  her  innocence,  was  given  in  evidence,  and 
there  was  evidence  of  other  statements  confessine 
guilt,  the  judge  left  the  whole  of  the  conflicting 
statements  to  the  jury  for  their  consideration.  But 
where  there  is,  in  the  whole  case,  no  evidence  but 
what  is  compatible  with  the  assertion  of  innocence, 
adduced  in  evidence  for  the  prosecution,  the  judge 
will  direct  an  acquittal  (r).      In  the  case  of  Strahan 

(/)  The  Trial  of  Lord  Cochrane  {Rex,  v.  De  Bercngcr  and  others^ 
3  M.  &  S.  67),  Gurney's  Shorthand  Report,  p.  479.  A  recent  account 
of  this  famous  trial  will  be  found  in  Lord  Cochrane's  Trial  before  Lord 
EUenborough,  by  J.  B.  Atlay  (1897). 

{it)  Rex  V.  Clewes,  4  C.  &  P.  221,  and  Shorthand  Report. 

{x)  Per  Garrow,  B.,  cited  in  Rex  v.  Jones,  2  C.  &  P.  629. 

H    2 


100  INCULPATORY    MORAL    INDICATIONS. 

and  Paul,  on  a  charge  of  selling  and  converting  to 
their  own  use  bonds,  with  which  they  were  entrusted 
for  safe  custody  as  bankers,  it  was  unsuccessfully 
contended,  that  the  admission  made  by  the  prisoner 
Strahan  must  be  accepted  in  its  entirety  or  not  at 
2    ^  all,  and    that   it  would   then    fairly  and   reasonably 

'^    3  lead  to  the  conclusion  that  he  had  known  nothing 

Q    i.  of  the   fraudulent  transactions  in  which  the   other 


> 

O 


'Ji 


§i  ^ 


^  =5 


z 


prisoners  were  the  leading  actors,  in   March,  1854; 

but  Mr.  Baron  Alderson  told  the  jury  that  they 
5  were  not  bound  to  believe  either  the  whole  or  any 

<  ^  part  of  the  statement  made  by  the  prisoner  Strahan, 

pC  and  that  they  must  take  it  with  this  consideration  as 

one  of  the  circumstances  of  the  case  and  no  more  {y). 

Of  the  credit  and  effect  due  to  a  confessional 
statement  the  jury  are  the  sole  judges  :  they  must 
consider  the  whole  confession,  together  with  all  the 
other  evidence  in  the  case,  and  if  it  is  inconsistent, 
improbable,  or  incredible,  or  is  contradicted  or  dis- 
credited by  other  evidence,  or  is  the  emanation  of 
a  weak  or  excited  state  of  mind,  they  may  exercise 
their  discretion  in  rejecting  it,  either  wholly  or  in  part, 
whether  the  rejected  part  make  for  or  against  the 
prisoner  [z).  On  the  trial  of  a  man  for  setting  fire  to  a 
stack  of  hay,  it  appeared  that  between  two  and  three 
o'clock  in  the  morning,  a  police  constable  attracted 
by  the  cry  of  fire  went  to  the  spot,  close  to  which  he 
met  the  prisoner,  who  told  him  that  a  haystack  was 

(j)  Reg.  V.  Strahan  atid  others,  C.  C.  C.  Oct.  1855.  Sessions 
Papers,  vol.  42. 

{2)  Rex  V.  Higgins,  3  C.  &  P.  603  ;  Rex  v.  Steptoe,  4  C.  &  P.  397  ; 
I  Greenleaf's  L.  of  Ev.,  §  218. 


INDIRECT    CONFESSIONAL    EVIDENCE.  IQI 

on   fire,   and   that   he  was   going  to    London  ;    the 
policeman  asked  him  to  give  information  of  the  fire 
to    any    other   pohceman    he    might    meet,    and    to 
request  him  to  come  and  assist.      Shortly  afterwards, 
on    his  way  towards    London,   the  prisoner  met  a 
Serjeant  of  police  whom   he  informed   of  the   fire, 
stating  that  he  was  the  man  who  set  the  stack  on 
fire,  upon  which  he  was  taken  into  custody.     The 
Serjeant    of    police,    on    cross-examination    by    the 
prisoner,  stated  that  the  magistrates  entertained  an 
opinion  that  he  was  insane,  and  directed  inquiries  to 
be  made,  from  which  it  appeared  that  he  had  before 
been  charged  with  some   offence  and  acquitted  on 
the   ground  of  insanity.     When  apprehended,   the 
prisoner  appeared  under  great  excitement ;  and  upon 
his  trial  he  alleged  that  he  had  been  confined  two 
years  in  a  lunatic  asylum,  and  had  been  liberated 
only  about  a  year  ago ;   that  his   mind   had   been 
wandering  for  some  time  ;  and  that  passing  by  the 
place  at  the  time  of  the  fire,  he  was  induced,  in  a 
moment  of  delirium,  to  make  this  groundless  charge 
against  himself.      He  begged  the  Court  to  explain 
to  the  jury  the  different  result   that  would   follow 
from  his  being  acquitted  on  the  ground  of  insanity 
and  an  unconditional  acquittal  :  and  said  that  rather 
than  the  former  verdict  should  be  returned,  which 
would  probably  have  the  effect  of  immuring  him  in 
a  lunatic  asylum  for  the  rest  of  his  life,  he  would 
retract  his  plea  of  not  guilty,  and  plead  guilty  to  the 
charge.      Mr.  Justice  John  Williams  in  summing  up 
remarked,  that  there  did  not  appear  to  be  the  least 
evidence  against  the  prisoner  except  his  own  state- 
ment ;  and  that  it  was  for  the  jury  to  say  under  all  the 


102  INCULPATORY    MORAL    INDICATIONS. 

circumstances  whether  they  beheved  that  statement 
was  founded  in  fact,  or  whether  it  was,  as  the  prisoner 
alleged,  merely  the  effect  of  an  excited  imagination 
and  weak  mind.      The  prisoner  was  acquitted  (a). 

It  is  obvious  that  every  caution  observed  in  the 
reception  of  evidence  of  a  direct  confession,  ought 
to  be  more  especially  applied  in  the  admission  and 
estimation  of  the  analogous  evidence  of  statements 
which  are  only  indirectly  in  the  nature  of  confessional 
evidence  ;  since  such  statements,  from  the  nature  of 
the  case,  must  be  ambiguous,  or  relate  but  obscurely 
to  the  corpus  delicti.  *'  Hasty  confessions,"  says 
Sir  Michael  Foster,  "  made  to  persons  having  no 
authority  to  examine,  are  the  weakest  and  most 
suspicious  of  all  evidence.  Proof  may  be  too  easily 
procured,  words  are  often  misreported, — whether 
through  ignorance,  inattention,  or  malice,  it  mattereth 
not  to  the  defendant,  he  is  equally  affected  in  either 
case  ;  and  they  are  extremely  liable  to  misconstruc- 
tion, and  withal  this  evidence  is  not  in  the  ordinary 
course  of  things  to  be  disproved  by  that  sort  of 
negative  evidence  by  which  the  proof  of  plain  facts 
may  be  and  often  is  confronted  "  {b).  "  How  easy  is 
it,"  it  has  been  admirably  said,  "for  the  hearer  to 
take  one  word  for  another,  or  to  take  a  word  in  a 
sense  not  intended  by  the  speaker,  and  for  want  of 
an  exact  representation  of  the  tone  of  voice,  emphasis, 

{a)  Reg.  V.  Wilson,  Maidstone  Wint.  Ass.  1844.  The  same  view 
was  adopted  by  Wilde,  L.  C.  J.,  in  a  case  of  arson  at  Maidstone  Spring 
Assizes,  1847,  where  the  prisoner  to  conceal  his  disgrace  refused  to 
give  his  name. 

[b)  Foster's  Discourses  on  the  Crown  Law.  Disc.  I.  ch.  3,  p,  243  ; 
and  see  i  Greenleaf's  L.  of  Ev.  §  214. 


INDIRECT    CONFESSIONAL    EVIDENCE.  I03 

countenance,  eye,  manner  and  action  of  the  one  who 
made  the  confession,  how  ahiiost  impossible  it  is  to 
make  third  persons  understand  the  exact  state  of 
his  mind  and  meaning  !  For  these  reasons  such 
evidence  is  received  with  great  distrust  and  under 
apprehension   for  the  wrong  it  may  do"(^). 

Upon   the    trial  of  a  man   for  the   murder  of  a 
woman,  who  had  been  brutally  assaulted  by  three 
men,  and   died   from    the    injuries  she   received,  it 
appeared  that  one  of  the  offenders,  at  the  time  of 
the    commission   of  the  outrage,  called   another   of 
them   by  the  prisoner's   name,  from  which  circum- 
stance suspicion  attached  to  him.      A  person  deposed 
that   he   met   the   prisoner  at  a  public  house,    and 
asked  him  if  he  knew  the  woman  who  had  been  so 
cruelly  treated,  and  that  he  answered,  "  Yes,  what 
of  that  ?  "     The  witness  said,  that  he  then  asked 
him  if  he  was  not  one  of  the  parties  concerned  in 
that  affair ;  to  which  he  answered,  according  to  one 
account,    "  Yes,    I    was  ;    and    what    then  ? "   or,   as 
another  account  states,  "  If  I  was,  what  then  V     It 
appeared  that  the  prisoner  was  intoxicated,  and  that 
the  questions  were  put  with  a   view  of  ensnaring 
him  ;  but,  influenced  by  this  imprudent  language,  the 
jury  convicted  him,  and  he  was  executed.     The  real 
offenders  were  discovered  about  two  years  afterwards, 
and  two  of  them  were  executed  for  this  very  offence, 
and  admitted    their  guilt  ;    the  third    having   been 
admitted  to  give  evidence  for  the  Crown  [d). 

{c)  In  Resp.  v.  Fields,  Peck's  Rep.  140,  quoted  in  i  Taylor's  L.  of 
Ev.,  9thed.,  p.  555. 

{d)  Rex  V.  Coleman,  Kingston  Spring  Ass.,  1749.  4  Celebrated 
Trials,  344. 


104  IN'CULPATORY    MORAL    INDICATIONS. 

But  in  the  most  debased  persons  tliere  is  an 
involunlary  tendency  to  triitli  and  consistency, 
except  when  the  mind  is  on  its  o;uard,  and  studiously 
bent  upon  conceahnent  ;  and  this  law  of  our  nature 
sometimes  gives  rise  to  minute  and  unpremeditated 
acts  of  ijreat  weiirht.  In  the  memorable  case  of 
Eugene  Aram,  who  was  tried  in  1759  for  the 
murder  of  Daniel  Clark,  an  apparently  slight  circum- 
stance in  the  conduct  of  his  accomplice,  led  to  his 
conviction  and  execution.  About  thirteen  years 
after  the  time  of  Clark's  being  missing,  a  labourer, 
employed  in  digging  for  stone  to  supply  a  limekiln 
near  Knaresborough,  discovered  a  human  skeleton 
near  the  edge  of  the  cliff.  It  soon  became  suspected 
that  the  body  w^as  that  of  Clark,  and  the  coroner 
held  an  inquest.  Aram  and  Houseman  were  the 
persons  who  had  last  been  seen  with  Clark,  on  the 
night  before  he  was  missing.  The  latter  was  sum- 
moned to  attend  the  inquest,  and  discovered  signs 
of  uneasiness  :  at  the  request  of  the  coroner  he  took 
up  one  of  the  bones,  and  in  his  confusion  dropped 
this  unguarded  expression,  "  This  is  no  more  Daniel 
Clark's  bone  than  it  is  mine  ;  "  from  which  it  was 
concluded,  that  if  he  was  so  certain  that  the  bones 
before  him  were  not  those  of  Clark,  he  could  give 
some  account  of  him.  He  was  pressed  with  this 
observation,  and,  after  various  evasive  accounts,  he 
stated  that  he  had  seen  Aram  kill  Clark,  and  that 
the  body  was  buried  in  St.  Robert's  Cave,  with  the 
head  to  the  rioht  in  the  turn  at  the  entrance  of  the 
cave,  and  upon  search,  pursuant  to  his  statement, 
the  skeleton  of  Clark  was  found  in  St.  Robert's 
Cave,    buried    precisely   as    he    had    described    it. 


INDIRECT    CONFESSIONAL    EVIDENCE.  lOj 

Aram  was  consequently  apprehended  and  tried  at 
York  in  1759,  Houseman  being  the  sole  witness 
against  him.  He  was  convicted  and  executed,  after 
having  made  a  confession  of  the  crime  (e). 

A  remarkable  fact  of  the  same  kind  occurred  in 
the  case  of  one  of  three  men  convicted,  in  February, 
1807,  of  a  murder  on  Hounslow  heath.  In  conse- 
quence of  disclosures  made  by  an  accomplice,  a 
police-officer  apprehended  the  prisoner  four  years 
after  the  murder  on  board  the  '  Shannon  '  frigate, 
in  which  he  was  serving  as  a  marine.  The  ofhcer 
asked  him  in  the  presence  of  his  captain  where  he 
had  been  about  three  years  before  ;  to  which  he 
answered  that  he  was  employed  in  London  as  a 
day-labourer.  He  then  asked  him  where  he  had 
been  employed  that  time  four  years  :  the  man 
immediately  turned  pale,  and  would  have  fainted 
away  had  not  water  been  administered  to  him. 
These  marks  of  emotion  derived  their  weight  from 
the  latency  of  the  allusion — no  express  reference 
having  been  made  to  the  offence  with  which  the 
prisoner  was  charged — and  from  the  probability  that 
there  must  have  been  some  secret  reason  for  his  emo- 
tion connected  with  the  event  so  obscurely  referred  to, 
particularly  as  he  had  evinced  no  such  feeling  upon 
the  first  question,  which  referred  to  a  later  period  (_/). 

The  conduct  of  a  person  accused  of  a  crime,  the 

(e)  Life  and  Trial  of  Eugene  Aram,  1759.  Best  edition  printed  at 
Richmond,  1832.  See  Ann.  Reg.  1759,  p.  360:  4  Celebrated  Trials, 
243,  and  Diet,  of  Nat.  Biog.,  article  Aram. 

(/)  Rex  V.  Hajro^erty  and  others,  6  Celebrated  Trials,  19  ;  and  O.  B. 
Sessions  Papers,  1807. 


I06  INCULPATORY    MORAL    INDICATIONS. 

things  he  says  and  does,  or  the  letters  he  writes, 
are  often  important  pieces  of  indirect  confessional 
evidence,  which  may  prove  his  guilt  conclusively. 
On  the  morning  of  Oct.  21st,  1891,  at  about  3  a.m., 
a  young  woman  named  Clover,  who  lived  in  Lambeth, 
Avas  taken  violently  ill,  and  died  at  about  9  a.m.  A 
local  practitioner  gave  a  certificate  of  death  from 
syncope  caused  by  delirium  tremens.  No  suspicion 
of  foul  play  was  aroused,  and  the  girl  was  buried 
without  any  further  inquiry.  In  the  following  spring 
suspicions  accumulated  against  a  man  known  as 
Dr.  Neill  with  regard  to  the  deaths  of  other  women, 
and  on  May  5th,  1892,  Clover's  body  was  exhumed, 
and  an  examination  showed  that  death  had  un- 
doubtedly been  caused  by  strychnine.  Up  to  within 
a  week  or  so  previously  there  had  been  no  suggestion 
that  the  woman  had  died  anything  but  a  natural 
death,  and  strychnine  had  not  been  mentioned  at  all. 
Upon  the  trial  of  this  man  in  October,  1892,  for  the 
murder  of  Clover,  the  most  strikincr  evidence  acjainst 
him  was,  that  about  a  week  after  Clover's  death  he 
asked  his  landlady's  daughter  to  go  up  to  the  house 
where  Clover  had  lived,  as  he  had  heard  that  a  girl 
had  been  poisoned  there,  and  he  wanted  to  know 
if  that  was  the  case.  His  request  was  refused,  and 
no  further  notice  of  it  was  taken  at  the  time.  On 
Nov.  26th,  1 89 1,  a  well-known  West-end  doctor 
received  a  letter  (undoubtedly  in  prisoner's  hand- 
writing) stating  that  Clover  had  been  poisoned  wdth 
strychnine,  accusing  the  doctor  of  murder,  and 
demanding  £2,500  as  the  price  of  silence.  This 
letter  the  doctor  immediately  sent  to  the  police,  but 
after  a  few  attempts  to  discover  the  author,  it  was 


INDIRFXT    CONFESSIONAL    EVIDENCE.  I07 

considered  as  a  mere  mad  attempt  to  levy  blackmail. 
When  the  murder  was  subsequently  discovered  and 
investigated,  it  became  obvious  that  these  statements, 
made  at  a  time  when  there  was  no  suggestion  of 
murder,  and  when  no  one  in  the  world  except  the 
murderer  could  have  known  that  strychnine  was 
the  cause  of  death,  were  the  strongest  possible 
evidences  of  guilt.  The  prisoner  was  convicted 
and  executed,  and  had  undoubtedly  been  the  author 
of  other  similar  crimes  perpetrated  for  the  purposes 
of  levying  blackmail  (^^). 

To  this  head  may  be  referred  the  acts  of  con- 
cealment, disguise,  flight,  and  other  indications  of 
mental  emotion  usually  found  in  connection  with 
guilt  [h).  By  the  common  law,  filght  was  con- 
sidered so  strong  a  presumption  of  guilt,  that  in 
cases  of  treason  and  felony  it  carried  the  forfeiture 
of  the  party's  goocis,  whether  he  were  found  guilty 
or  acquitted  (/)  ;  and  the  officer  always,  until  the 
abolition  of  the  practice  by  statute  (/c),  called  upon 
the  jury,  after  verdict  of  acquittal,  to  state  whether 
the  party  had  fled  on  account  of  the  charge.  These 
several  acts  in  all  their  modifications  are  indications 
of  fear  ;    but  it  would  be  harsh  and  unreasonable  to 

{g)  Reg.  V.  Neill  or  Cream,  C.  C.  C.  cor.  Hawkins,  J.  See  The  Times, 
Oct.  iZih.  et  seq.,  1892.     Sessions  Papers,  vol.  116,  14, 

{h)  See  Rex  v.  Cross/ield,  26  St.  Tr.  216  et  seq. 

(/)  "  For  he  hath  done  what  in  him  lay  to  stop  the  course  of  public 
justice."  See  Foster's  Discourses  on  the  Crown  Law,  Disc.  I.  chaps, 
ii.  and  iii.  pp.  272  and  286.  Cf.  Co.  Litt.  s.  745,  p.  391a  ;  Co.  Rep. 
xn.  121. 

(>^)  7  &  8  Geo.  IV.  cap.  28,  §  5,  which  is  itself  repealed  by  the 
Statute  Law  Revision  Act,  1888  (51  &  52  Vict.  ch.  n),  but  so  that  the 
old  law  does  not  revive. 


I08  INCULPATORY    MORAL    INDICATIONS. 

interpret  them  invariably  as  indications  of  guilty 
consciousness,  and  greater  weight  has  sometimes 
been  attached  to  them  than  they  have  fairly  warranted. 
lJ)oubtless  the  manly  carriage  of  integrity  always 
commands  the  respect  of  mankind,  and  all  tribunals 
do  homage  to  the  great  principles  from  which 
consistency  springs ;  but  it  does  not  follow,  because 
the  moral  courage  and  consistency  which  generally 
accompany  the  consciousness  of  uprightness  raise 
a  presumption  of  innocence,  that  the  converse  is 
always  true.  Men  are  differently  constituted  as 
respects  both  animal  and  moral  courage,  and  fear 
may  spring  from  causes  very  different  from  that 
of  conscious  guilt  ;  and  every  man  is  therefore 
entitled  to  a  candid  construction  of  his  words  and 
actions,  particularly  if  placed  in  circumstances 
of  great  and  unexpected  difficulty  (/).  Mr.  Justice 
Abbott  on  a  trial  for  murder  where  evidence  was 
given  of  flight,  observed  in  his  charge  to  the  jury, 
that  "  a  person,  however  conscious  of  innocence, 
might  not  have  courage  to  stand  a  trial ;  but  might, 
although  innocent,  think  it  necessary  to  consult  his 
safety  by  flight."  "  It  may  be,"  added  the  learned 
judge,  "a  conscious  anticipation  of  punishment  for 
guilt,  as  the  guilty  will  always  anticipate  the  con- 
sequences ;  but  at  the  same  time  it  may  possibly 
be,  according  to  the  frame  of  mind,  merely  an 
inclination  to  consult  his  safety  by  flight  rather  than 
stand  his  trial  on  a  charge  so  heinous  and  scandalous 
as    this    is "  (w).      In   his   charge  to  the  jury   upon 

(/)  Per  Gurney,  B.,  in  Reg.  v.  Belaiiey  ;  see  pp.  336-343,  infra.,  where 
the  facts  of  this  case  are  given  at  length. 
{m)  Rex  V.  Donnall,  see  pp.  331-336,  infra. 


INDIRECT    CONFESSIONAL    EVIDENCE.  lOQ 

the  trial  of  Professor  Webster  for  niurder,  Chief 
Justice  Shaw  of  Massachusetts,  said,  "  Such  are 
the  various  temperaments  of  men,  and  so  rare  the 
occurrence  of  the  sudden  arrest  of  a  person  upon 
the  charge  of  a  crime  so  heinous,  that  who  of  us 
can  say  how  an  innocent  or  a  guiky  man  ought 
or  would  be  likely  to  act  in  such  a  case  ?  or  that 
he  was  too  much  or  too  little  moved  for  an  innocent 
man  ?  Have  you  any  experience  that  an  innocent 
man,  stunned  under  the  mere  imputation  of  such 
a  charge,  will  always  appear  calm  and  collected  ? 
or  that  a  guilty  man,  who  by  knowledge  of  his  danger 
might  be  somewhat  braced  up  for  the  consequences, 
would  always  appear  agitated  or  the  reverse  "  (;z). 

It  is  not  possible  to  lay  down  any  express  test  by 
which  these  various  indications  may  be  infallibly 
referred  to  any  more  specific  origin  than  the 
operation  of  fear.  Whether  that  fear  proceeds  from 
the  consciousness  of  guilt,  or  from  the  apprehension 
of  undeserved  disgrace  and  punishment,  and  from 
deficiency  of  moral  courage,  is  a  question  which 
can  be  judged  of  only  by  reference  to  concomitant 
circumstances.  Prejudice  Is  often  epidemic,  and 
there  have  been  periods  and  occasions  when  public 
indignation  has  been  so  much  and  so  unjustly 
aroused,  as  reasonably  to  deter  the  boldest  mind 
from  voluntary  submission  to  the  ordeal  of  a  trial. 
The  consciousness  that  appearances  have  been 
suspicious,  even  where  suspicion  has  been  un- 
warrantable, has  sometimes  led  to  acts  of  conduct 

(«)  Bemis's  Rep.  486  (1S50).     Two  other  reports  are  extant  of  the 
same  date,  one  printed  in  Boston  and  one  in  London. 


no  INCULPATORY    MORAL    INDICATIONS. 

apparently  incompatible  with  innocence,  and  drawn 
down  the  unmerited  inlliction  of  the  highest  penalty. 
The  inconclusiveness  of  these  circumstances  is 
strikingly  exemplified  by  a  case  mentioned  in  a 
preceding  page,  where  the  magistrate  was  so  fully 
convinced  of  the  prisoner's  innocence,  that  he 
allowed  him  to  go  at  large  on  bail  to  appear  at 
the  assizes.  The  coroner's  inquest  having  brought 
in  a  verdict  of  '  guilty '  against  him,  he  endeavoured 
to  escape  from  the  danger  of  a  trial  in  the  excited 
state  of  public  feeling  by  flight ;  but  was  sub- 
sequently apprehended,  convicted,  and  executed  on 
a  charge  of  murder,  of  which  he  was  unquestionably 
guiltless  [o). 

In  the  endeavour  to  discover  truth,  no  evidence 
should  be  excluded  ;  but  a  case  must  be  scanty  of 
evidence  which  demands  that  any  considerable 
importance  should  be  attached  to  circumstances  so 
fallacious  as  the  acts  in  question.  It  has  been 
observed,  that  if  the  evidence  without  them  is 
sufficient,  this  species  of  evidence  is  unnecessary, 
and  that  if  not,  then  the  inferences  from  language, 
conduct,  and  behaviour,  seem  not  of  sufficient  weitrfit 
to  give  any  conclusive  effect  to  the  other  proofs  (/). 
It  is,  in  fact,  a  make- weight  and  nothing  more  ;  and 
care  must  always  be  taken  that  mere  make-weights 
are  not  allowed  to  have  an  exaggrerated  effect. 

(o)  Rex  V.  Coleman,  vide  supra,  p.  103  ;  and  see  the  case  of  AV.rv. 
Green  and  others,  14  St.  Tr.  1199,  where  several  persons,  one  of  whom 
had  voluntarily  surrendered,  were  convicted  in  Scotland  and  executed, 
at  a  period  of  great  excitement  against  Englishmen,  upon  a  groundless 
charge  of  piracy  and  murder. 

{p)  Per  Shaw,  C.  J.,  in  P/vf.  Webs.'ef's  case,  vide  supra,  pp.  loS,  109. 


simulation  of  evidence.  ih 

Section    7. 

the  suppression,  destruction,  fabrication,  and 
simulation  of  evidence. 

It  is  a  maxim  of  law,  that  omnia  prasumiintur  contra 
spoliatorcni,  and  the  suppression  or  destruction  of 
pertinent  evidence  is  always  therefore  deemed  a 
prejudicial  circumstance  of  great  weight ;  for  as  no 
action  of  a  rational  being  is  performed  without  a 
motive,  it  naturally  leads  to  the  inference  that  such 
evidence,  if  it  were  produced,  would  operate  un- 
favourably to  the  party  in  whose  power  it  is  to  produce 
it,  and  who  withholds  it  or  has  wilfully  deprived 
himself  of  the  power  of  producing  it  (^). 

A  chimney-sweeper  having  found  a  jewel,  took  it 
to  a  jeweller  to  ascertain  its  value  ;  who,  having 
removed  it  from  the  socket,  gave  him  three-half- 
pence, and  refused  to  return  it.  The  friends  of  the 
finder  encouraged  him  to  bring  an  action  against 
the  jeweller;  and  Lord  Chief  Justice  Pratt  directed 
the  jury,  that  unless  the  defendant  produced  the 
jewel,  and  showed  it  not  to  be  of  the  finest  water, 
they  should  presume  the  strongest  against  him,  and 
make  the  value  of  the  best  jewels  the  measure  of 
their  damages  (r).  In  an  action  of  trover  for  a 
diamond  necklace  which  had  been  unlawfully  taken 
out  of  the  owner's  possession,  it  appeared  that  some 
of  the  diamonds  were  seen  shortly  afterwards  in  the 
defendant's  possession,  and  that  he  could  give   no 

{q)  Starkie's  L.  of  Ev.,  4th  ed.  1853,  pp.  755  et  scq. 
(r)  Armory  v.  Del  amir ie,  I    Strange,  505  ;    and  see  Rex  v.  Lord 
Melville^  29  St.  Tr.  at  col.  1456. 


112  INCULPATORY    MORAL    INDICATIONS. 

satisfactory  account  how  he  came  by  them  :  the  jury 
were  directed  to  presume  that  the  whole  set  of 
diamonds  had  come  to  the  defendant's  hands,  and 
that  the  full  value  of  the  whole  was  the  proper 
measure  of  damages  (s).  On  an  ejectment  involving 
the  title  to  large  estates  in  Ireland,  the  question 
being  whether  the  plaintiff  was  the  legitimate  son 
of  Lord  Altham,  and  therefore  prior  in  right  to  the 
defendant,  who  was  his  brother,  it  was  proved  that 
the  defendant  had  procured  the  plaintiff,  when  a 
boy,  to  be  kidnapped  and  sent  to  America,  and  on 
his  return,  fifteen  years  afterwards,  on  occasion  of 
an  accidental  homicide,  had  assisted  in  an  unjust 
prosecution  against  him  for  murder :  it  was  held 
that  these  circumstances  raised  a  violent  presumption 
of  the  defendant's  knowledge  of  title  in  the  plaintiff; 
and  the  jury  were  directed  that  the  suppressor  and 
the  destroyer  were  to  be  considered  in  the  same 
light  as  the  law  considers  a  spoliator,  as  having 
destroyed  the  proper  evidence  ;  that  against  him, 
defective  proof,  so  far  as  he  had  occasioned  such 
defect,  must  be  received,  and  everything  presumed 
to  make  it  effectual ;  and  that  if  they  thought  the 
plaintiff  had  given  probable  evidence  of  his  being 
the  legitimate  son  of  Lord  Altham,  the  proof  might 
be  turned  on  the  defendant,  and  that  they  might 
expect  satisfaction  from  him  that  his  brother  died 
without  issue  (/).  On  a  bill  filed  against  a  defen- 
dant  who    had    destroyed    a    deed    by   which    the 

(s)  Mortimer  \.  Craddock,  12  L.  J.  N.  S.  (C.  P)  166. 

(/)  Craig  d.  A7inesley  v.  Earl  of  Anglesea,  17  St.  Tr.  1416; 
and  see  the  Tracy  Peerage,  10  C.  &  F.  154;  Cltenties  v.  Pezzey, 
I  Camp.  8  ;  Lawton  v.  Swcejiey,  8  Jurist,  964  ;  Greenleaf's  L.  of 
Ev.  s.  yj. 


SIMULATION    OF    EVIDENCE.  II3 

plaintiff  claimed  under  certain  limitations  a  real 
estate,  secondary  evidence  was  given  of  the  limita- 
tions in  the  deed  ;  but  the  evidence,  as  the  witnesses 
gave  it,  was  of  limitations  which  could  not  legally 
take  effect,  being  of  a  term  of  years  after  an  indefinite 
failure  of  issue, — Sir  Joseph  Jekyll,  the  Master  of 
the  Rolls,  said  that  as  against  the  man  who  had 
destroyed  the  instrument  which  would  have  shown 
what  the  rights  of  the  plaintiff  were,  he  would  pre- 
sume even  what  the  plaintiff  had  not  proved,  that 
the  limitation  was  to  take  place  after  the  failure  of 
issue  in  the  life-time  of  a  person  then  in  being  (u). 

The  foregoing  illustrations  of  the  rule  of  evidence 
under  consideration,  are  among  the  most  remarkable 
recorded  cases  of  its  application;  nor  are  they  the 
less  pertinent  because  they  arose  in  civil  cases,  since 
the  general  principles  of  evidence  are  the  same  in 
all  cases,  whether  civil  or  criminal ;  and  no  incon- 
siderable proportion  of  the  criminal  trials  which  occur, 
present  examples  of  its  practical  bearing  and  effect  [x). 

Amongst  the  most  forcible  of  presumptive  indica- 
tions may  be  mentioned,  all  attempts  to  pollute  or 
disturb  the  current  of  truth  and  justice,  or  to  prevent 
a  fair  and  impartial  trial,  by  endeavours  to  intimi- 
date, suborn,  bribe,  or  otherwise  tamper  with  the 
prosecutor,  or  the  witnesses,  or  the  officers  or 
ministers  of  justice,  the  concealment,  suppression, 
destruction,  or  alteration  of  any  article  of  real  evi- 
dence ;  any  of  which  acts,  clearly  brought  home  to 

(u)  Da/s/on  v.  Coatsivorth,  i  P.  Wms.  731. 

\x)  Rexv.DelaMoite,2\  St.Tr.8io;  AV^v.i?«r^/^//,4B.&Ald.atp.  12a 

C.E.  I 


1 14  INCULPATORY    MORAL    INDICATIONS. 

the  prisoner,  or  liis  ag-cnts,  are  of  a  most  prejudicial 
effect,  as  dcncjtino-  on  his  part  a  consciousness  of 
guilt,  and  a  desire  to  evade  the  pressure  of  facts 
tending-  to  estabh"sh  it  (7).  Perhaps  in  no  case  have 
circumstances  of  this  kind  told  with  such  fatal  effect 
as  in  that  of  Donellan,  who  was  convicted  of  the 
murder  of  Sir  Theodosius  Boughton  by  poison. 
The  prisoner,  after  having  admiriistered  the  fatal 
draught  in  the  form  of  medicine,  rinsed  out  the  phial 
which  had  contained  it,  and  when  that  fact  was 
stated  before  the  coroner,  he  was  observed  to  check 
the  witness  by  pulling  her  sleeve.  In  his  charge  to 
the  jury,  Mr.  Justice  Duller  laid  great  stress  upon 
that  circumstance.  "  Was  there  anything  so  likely," 
said  the  learned  judge,  "  to  lead  to  a  discovery  as 
the  remains,  however  small  they  might  have  been, 
of  medicine  in  the  bottle  ?  But  that  is  destroyed 
by  the  prisoner.  In  the  moment  he  is  doing  it,  he 
is  found  fault  with.  What  does  he  do  next?  He  takes 
the  second  bottle,  puts  water  into  that,  and  rinses 
it  also.  He  is  checked  by  Lady  Boughton,  and 
asked  what  he  meant  by  it — why  he  meddled  with 
the  bottles.  His  answer  is,  he  did  it  to  taste  it; 
but  did  he  taste  the  first  bottle  ?  Lady  Boughton 
swears  he  did  not.  The  next  thing  he  does,  is  to 
eet  all  the  thin^js  sent  out  of  the  room  ;  for  when 
the  servant  comes  up,  he  orders  her  to  take  away 
the  bottles,  the  basin,  and  the  dirty  things.  He 
puts  the  bottles  into  her  hand,  and  she  was  going  to 
carry  them  away,  but  Lady  Boughton  stopped  her. 
Why  were  all  these  things  to  be  removed  ?     Why 

(_y)  J^ex  V.  Crossjie/d,  26  St.  Tr.  217  ;  Rex  v.  Donclhin,  p.  324,  infra; 
Rex  V.  Doniiall,  p.  331,  infra;  Reg.  v.  Palmer,  p.  344,  injra. 


SIMULATION    OF    EVIDENCE.  II5 

was  it  necessary  for  the  prisoner,  who  was  fully 
advertised  of  the  consequence  by  Lady  Boughton,  to 
insist  upon  having  everything  removed  ?  Why  should 
he  be  so  solicitous  to  remove  everything  that  might 
lead  to  a  discovery?"  After  dealing  with  the 
prisoner's  conduct  in  other  matters,  the  learned 
judge  continued  :  "Then  as  to  the  conduct  of  the 
prisoner  before  the  coroner.  Lady  Boughton  had 
mentioned  the  circumstance  of  the  prisoner's  rinsing 
out  the  bottle — one  of  the  coroner's  jury  swears  that 
he  saw  him  pull  her  by  the  sleeve.  Why  did  he  do 
that  }  If  he  was  innocent,  would  it  not  be  his  wish 
and  anxious  desire,  as  he  expresses  in  his  letter, 
that  all  possible  inquiry  should  be  made  ?  W^hat 
passes  afterwards  ?  When  they  got  home,  the 
prisoner  tells  his  wife  that  Lady  Boughton  had 
given  this  evidence  unnecessarily  ;  that  she  was  not 
obliged  to  say  anything  but  in  answer  to  questions 
that  were  put  to  her,  and  that  the  question  about 
rinsing  out  the  bottles  was  not  asked  her.  Did  the 
prisoner  mean  that  she  should  suppress  the  truth  ? 
that  she  should  endeavour  to  avoid  a  discovery  as 
much  as  she  could  by  barely  saying  Yes  or  No  to  the 
questions  that  were  asked  her,  and  not  disclose  the 
whole  truth  }  If  he  was  innocent,  how  could  the  truth 
affect  him  ?  but  at  that  time  the  circumstance  of  rinsing 
out  the  bottles  appeared  even  to  him  to  be  so  decisive 
that  he  stopped  her  on  the  instant,  and  blamed  her 
afterwards  for  having  mentioned  it.  All  these,"  said 
the  learned  judge,  "  are  very  strong  facts  to  show 
what  was  passing  in  the  prisoner's  own  mind  "  (2). 

{z)  Gurney's  Shorthand  Report,  referred  to  supra,  p.  2)7'    See  p.  324, 
infra,  for  the  facts  of  the  case. 

I   2 


Tl6  INCULPATORY    MORAL    INDICATIONS. 

A  boatman  was  convicted  of  stealing  rum  which 
had  been  delivered  to  his  master,  a  carrier  by  canal, 
for  conveyance  from  Liverpool  to  Birmingham,  The 
carrier's  agent  at  Liverpool  had  taken  a  sample  of 
the  spirit  and  tested  its  strength  ;  and  upon  delivery 
at  its  place  of  destination,  the  spirit  was  found  to 
be  under  proof,  and  the  portion  abstracted  had 
been  replaced  with  water.  The  carrier's  clerk, 
on  the  complaint  of  the  consignee,  went  to  the 
boat  where  the  prisoner  was,  to  require  explana- 
tion ;  but  as  soon  as  he  had  stepped  into  it,  the 
prisoner  pushed  him  back  upon  the  wharf,  and 
forced  the  boat  Into  the  middle  of  the  canal,  where 
he  broke  three  jars  and  emptied  their  contents, 
which  by  the  smell  were  proved  to  be  rum,  into  the 
canal  {a). 

In  a  case  already  mentioned,  the  prisoner,  who 
was  helping  in  the  house  of  a  medical  man,  had 
given  to  his  wife  a  cup  of  tea,  which  tasted  very 
hot  and  unpleasant.  After  taking  it,  the  mistress 
had  been  very  ill.  A  few  days  later  the  mistress 
was  in  the  kitchen,  and  mixed  herself  some  brandy 
and  water  in  a  cup.  She  went  into  the  garden, 
leaving  the  teacup  on  the  kitchen  table.  When 
she  came  back  she  tasted  the  brandy  and  water,  and 
exclaimed,  "  What  a  disagreeable  taste  ;  it  is  exactly 
like  the  tea."  At  that  moment  the  prisoner  drew 
the  cloth  off  the  kitchen  table,  and  the  teacup  was 
broken.  The  pieces  were  throw^n  away,  but  after- 
wards recovered,  when  they  were  found  to  be  coated 

{a)  Rex  V.    Thomas^   Warwick    Spring    Ass.    1836,   coram   Bosan- 
quet,  J. 


SIMULATION    OF    EVIDENCE.  II7 

with  a  sediment  which,  upon  being  analysed,  turned 
out  to  be  corrosive  subUmate  {S). 

Other  facts  of  the  same  kind  are  the  common 
cases  of  the  obHteration,  effacing,  or  otherwise 
removing  marks  of  ownership  or  identity  from 
plate,  linen,  or  other  articles  of  property,  or  of 
stains  of  blood,  or  other  matter  from  the  person 
or  dress  of  the  accused,  or  the  suggestion  or  insinua- 
tion of  false,  groundless,  or  deceptive  hypotheses, 
or  explanations  in  order  to  neutralize  or  account  for 
adverse  facts  or  appearances.  It  is  on  the  same 
principle  that,  by  statute,  if  any  person  on  board  a 
vessel  which  is  chased  by  an  officer  of  the  preventive 
service,  shall  throw  overboard,  stave,  or  destroy  any 
part  of  her  lading,  the  vessel  is  declared  to  be  for- 
feited ;  and  that  goods  liable  to  duty  concealed  on 
board  any  vessel  are  also  declared  to  be  forfeited  (c)  ; 
and  that  other  similar  statutable  presumptions  have 
been  created  ;  and  that  whenever  absent  witnesses  are 
so  mixed  up  with  transactions  before  the  Court  as  to 
give  rise  to  comments  on  their  not  being  present, 
it  is  the  common  practice  to  prove  the  cause  of 
their  non-attendance,  as,  for  instance,  death,  illness, 
or  their  having  quitted  the  country  {d). 

Another  fact  of  this  kind  is  the  attempt  to  prevent 
post-mortem  examination  by  the  premature  interment 

{b)  Reg.  V.  Sarah  Kibbler,  Warwick  Autumn  Ass.  18S9,  coramWWls,]. 

(c)  8  &  9  Vict.  c.  87.  ss.  5  (d),  6,  and  29.  See  now  the  Customs 
Consolidation  Act,  1876  (39  &  40  Vict.  c.  36).  See  §§  177,  179,  180, 
183,  &c. 

{d)  Per  Pollock,  L.  C.  B.,  in  Cowper  v.  French^  Exch.  N.  P.  J  uly  loth, 
1850. 


Il8  INCULPATORY    MORAL    INDICATIONS. 

of  human  remains,  under  the  pretext  that  it  is  ren- 
dered necessary  by  the  state  of  the  body,  since  it 
cannot  but  be  known  that  such  examination  will 
always  furnish  important,  and  generally  conclusive, 
evidentiary  matter  as  to  the  cause  of  death  (e).  So 
also  is  the  concealment  of  death  by  the  destruction 
or  attempted  destruction  of  human  remains  {/)  ; 
but  in  this  case  the  presumption  of  criminality  results 
from  the  act  of  concealment  rather  than  from  the 
nature  of  the  means  employed,  however  revolting, 
which  must  be  regarded  only  as  incidental  to  the 
fact  of  concealment  and  not  as  aggravating  the 
character  and  tendency  of  the  act  itself.  Where  a 
prisoner  tried  for  murder  admitted  that  he  had  cut 
off  the  head  and  legs  from  the  trunk  of  a  female, 
and  concealed  the  remains  in  several  places,  but 
alleged  that  her  death  had  taken  place  by  accident 
while  she  was  in  his  company,  and  that  in  the  alarm 
of  the  moment,  and  to  prevent  suspicion,  he  had 
determined  to  conceal  the  death,  Lord  Chief  Justice 
Tindal  told  the  jury  that  the  concealment  of  death 
under  such  circumstances,  had  always  been  consi- 
dered to  be  a  point  of  the  greatest  suspicion,  but  that 
this  evidence  must  be  received  with  a  certain  degree 
of  modification,  and  especially  in  a  case  where  the 
feelings  might  be  excited  by  the  singular  means  of 
concealment  adopted  by  the  prisoner ;  that  this  point 
of  evidence  was  therefore  for  the  consideration  of 
the  jury,  and  that  it  was  for  them  to  judge  how  far 

(e)  Rex  V.  Donellan,  p.  324,  infra;  Rex  v.  Donnall,  p.  331,  infra; 
Rex  V.  Palmer,  p.  344,  ijifra. 

(/)  Rex  V.  GardeUe,  4  Celebrated  Trials,  400 ;  Rex  v.  Cook,  p.  290, 
infra;  Reg.  v.  Good,  C.  C.  C.  May,  1842. 


SIMULATION    OF    EVIDENCE.  IIQ 

it  was  a  proof  of  the  prisoner's  guilt  ;  but  the  mert 
tfeneral  fact  of  the  concealment,  added  the  learned 
judge,  is  to  be  considered,  and  not  the  circumstances 
under  which  it  took  place  (^). 

So,  too,  in  cases  where  it  is  a  question  whether 
death  has  occurred  accidentally  or  from  suicide,  or  is 
attributable  to  murder,  concealment  of  the  body  is 
often  a  grave  inculpatory  fact.  In  a  case  tried  at 
Edinburgh  in  1889,  it  was  proved  that  prisoner  and 
the  deceased,  a  man  named  Rose,  who  were  casual 
touring  acquaintances,  took  a  lodging  together,  about 
July  the  13th.  On  the  16th  they  climbed  Goat  Fell 
together.  Late  t,hat  night,  prisoner,  who  had  been 
usino-  a  false  name,  returned  alone  to  the  lodcrintrs 
and  carried  off  both  his  own  and  Rose's  property, 
leaving  the  bill  unpaid.  Rose's  body  was  afterwards 
found  hidden  by  stones  near  a  cliff  over  which  he 
mio'ht  have  fallen  in  descending  Goat  Fell.  The 
medical  evidence  was  divided  as  to  whether  his 
injuries  were  more  probably  caused  by  a  fall  or  by 
blows  from  a  stone.  The  defence  was  that  Rose  met 
his  death  by  an  accident,  that  the  prisoner  had  parted 
with  him  previously,  and  having  decamped  with  his 
property,  was  afraid  to  come  forward  when  inquiries 
were  made.  This  theory  left  it  unexplained  as 
to  how  the  body  became  covered  up,  or  who  did 
it,  or  what  reason  there  was  for  doing  it.  The 
jury  by  a  majority  found  the  prisoner  guilty  of 
murder  {h). 

{g)  Rex  V.   Greenacre,  C.  C.  C.  April,   1837,  8  C.  &  P.  35  ;    and 
see  Professor  Webster's  case,  Ikmis's  Report,  p.  109,  sup/a. 
{Ji)  Reg.  V.  Laurie.    See  limes,  November  9th  and  nth,  1889. 


120  INCULPATORY    MORAL    INDICATIONS. 

Other  such  facts  are  the  officious  affectation  of 
grief  and  concern  as  an  artifice  to  prevent  or  avert 
suspicion  (/),  false  representations  as  to  the  state 
of  a  party's  health,  or  the  utterance  of  obscure  or 
mysterious  predictions  or  allusions,  the  pretence  of 
supernatural  dreams,  noises,  or  other  omens  or  inti- 
mations, calculated  to  prepare  the  connections  for  the 
event  of  sudden  death,  and  to  diminish  the  surprise 
and  alarm  which  naturally  follow  such  an  event.  A 
woman  who  was  convicted  of  murder,  about  a  month 
before  the  catastrophe  told  the  mother  of  an  infant 
child  whom,  as  well  as  her  own  husband  and  child, 
she  poisoned,  that  she  had  had  her  fortune  told,  and 
that  within  six  weeks  three  funerals  would  go  from 
her  door,  those  of  her  husband  and  son  and  the 
child  of  the  person  she  was  addressing  {j). 

A  case  tried  in  the  Supreme  Court  of  Massa- 
chusetts affords  a  useful  illustration  of  the  value  of 
this  kind  of  evidence.  Sarah  Jane  Robinson,  a 
widow,  was  charged  with  the  murder  of  her  brother- 
in-law.  Freeman,  by  arsenical  poisoning.  Freeman 
had  a  wife  and  two  children,  and  in  1882  his  life 
was  insured  for  two  thousand  dollars.  The  prisoner 
knew  this.  She  was  in  urgent  want  of  money,  and 
the  motive  sufja-ested  for  the  crime  was  to  set  this 
insurance  money.  In  order  to  prove  her  guilty 
intention,  evidence  was  admitted  that  in  February, 
1885,  Mrs.  Freeman  was  taken  ill  with  pneumonia, 

(/)  Rex  V.  Blandy,  i8  St.  Tr.,  1118  ;  Rcxw.  Patch,  p.  ^^(^o^  infra. 

{j)  Rexv.  Hfllroyd,  6  Cel.  Tr.  167.  And  see  Rex  v.  Doncl/an,  p.  324, 
infra;  and  Rex  v.  Donnall,  p.  331,  infra.  See  also  Reg.  v.  Sarah 
Kibbler,  pp.  67,  63,  supra,  and  p.  122,  infra. 


SIMULATION    OF    EVIDENCE.  121 

and  was  recovering  until  the  prisoner  came  to 
nurse  her,  after  which  she  developed  symptoms  ot 
arsenical  poisonino-  and  died  ;  but  the  doctor  at  the 
time  certified  death  from  pneumonia.  During  Mrs. 
Freeman  s  illness,  and  after  her  death,  the  prisoner 
asked  various  people  to  persuade  Freeman  to  come 
and  live  with  her  instead  of  with  his  own  sister. 
Immediately  after  the  funeral  she  urged  Freeman 
to  assign  the  policy  of  insurance  to  her.  He  went 
to  live  with  her,  and  assigned  the  policy  to  her 
on  May  13th.  During  Mrs.  Freeman's  illness,  and 
when  she  seemed  likely  to  recover,  the  prisoner 
said  that  she  had  dreamed  that  Mrs.  Freeman 
would  die.  After  Freeman  came  to  live  with  her 
she  began  to  abuse  him,  and  say  he  would  be 
better  dead.  On  June  17th  she  sent  him  to  see  his 
mother,  '*  because  they  might  never  meet  again." 
For  about  three  weeks  before  his  death  the  prisoner 
professed  that  she  had  had  "  warnings" that  Freeman 
would  die.  On  Monday,  June  22nd,  Freeman  was 
taken  ill,  and  prisoner  at  o;.ce  said  he  would  never 
leave  the  house  alive.  She  attended  him  until 
Friday.  On  that  night  his  sister  sat  up  with  him, 
and  gave  him  his  medicine.  On  Saturday  morning 
he  was  better,  but  relapsed  about  noon,  and  died 
before  midnight.  He  died  of  arsenical  poisoning. 
During  the  illness  she  expressed  anxiety  about  the 
insurance  money,  as  she  had  failed  to  get  her 
husband's  insurance.  In  September  she  received 
the  insurance  money,  and  instead  of  investing 
it  for  Freeman's  child  (one  had  died)  she  used  it 
to  pay  her  own  debts.  There  was  no  evidence 
that  prisoner  had  arsenic  in  her  possession  at  any 


122  INCULPATORY    MORAL    INDICATIONS. 

time,  and  she  went  into  the  box  and  contradicted 
much  of  this  evidence,  but  she  was  convicted  and 
sentenced  to  death  (/').  A  woman  who  was  con- 
victed of  administering  poison  with  intent  to  murder 
had  told  a  witness,  at  a  time  when  the  intended 
victim  had  nothing  very  serious  the  matter  with 
her,  tliat  she  was  not  likely  to  recover,  for  that  foot- 
steps had  been  heard  on  the  landing  when  nothing 
could  be  seen,  and  that  that  was  a  token  of  death  (/). 

The  fabrication  of  simulated  facts  and  appearances 
calculated  to  create  alarm,  or  otherwise  to  give  a 
delusive  tendency  and  interpretation  to  inculpatory 
facts,  is  an  artifice  frequently  resorted  to,  for  the 
avoidance,  neutralization,  or  explanation  of  circum- 
stances naturally  presumptive  of  guilt  ;  the  resort  to 
which  is  of  the  most  prejudicial  criminative  tendency, 
inasmuch  as  it  necessarily  implies  an  admission  of 
their  truth,  and  a  consciousness  of  the  inculpatory 
effect,  if  uncontradicted  or  unexplained,  of  the  facts 
which  it  thus  seeks  to  divest  of  their  natural  signi- 
ficance. As  instances  of  such  simulated  facts  may 
be  mentioned  the  pretence  of  having  partaken  of  a 
poisonous  draught  which  has  caused  death  [in)  ;  the 
self-infliction  of  slight  wounds  to  raise  the  inference 
that  the  offender  had  himself  been  the  object  of 
deadly  attack  [ii)  ;  the  attempt  to  fix  guilt  or  sus- 
picion upon  others  by  the  groundless  suggestion  of 

(/(')  The  official  report  of  the  trial  of  Sarah  Jaiie  Robinson, 
Boston,  1880. 

(/)  Reg.  V.  Sarah  Kibbler,  Warwick  Autumn  Ass.,  1889,  coram  Wills,  J. 

{in^  Rex  V.  Nairn  atui  Ogilby,  19  St.  Tr.  1284;  Reg.  v.  Wesconibe^ 
Exeter  Sum.  Ass.  1839. 

(«)  Reg.  V.  Bolain,  Durham  Sum.  Ass.  1839. 


SIMULATION    OF    EVIDENCE.  I23 

malicious  feelinfjs  (o)  ;  the  placing-  of  a  razor,  pistol, 
or  other  weapon  in  the  hand  of  or  near  to  a  dead 
body  to  lead  to  the  notion  of  suicide,  and  many 
other  such  acts.  But  cunning  is  "a  sinister  or 
crooked  wisdom,"  and  not  unfrequently  the  very 
means  employed  to  prevent  suspicion,  lead  to  the 
discovery  of  the  real  fruth.  A  murderer,  to  simulate 
the  appearance  of  suicide,  placed  a  razor  in  the  left 
hand  of  a  right-handed  woman  (/).  A  man  was  found 
shot,  and  his  own  pistol  lying  near  him  ;  but,  although 
no  person  had  been  seen  to  leave  the  house,  the 
suspicion  of  suicide  was  negatived  by  the  fact  that 
the  ball  was  too  large  to  have  entered  the  pistol  (^/). 

A  very  remarkable  case  of  this  kind  is  recorded  in 
the  State  Trials,  which  was  tried  at  Hertford  Assizes, 
4  Car.  I.,  before  Mr.  Justice  Harvey.  A  woman 
was  found  dead  in  her  bed,  with  her  throat  cut,  and 
a  knife  sticking  in  the  floor.  Several  persons  of  the 
family  who  slept  in  the  adjoining  room  deposed  that 
the  deceased  went  to  bed  with  her  child,  her  husband 
being  absent,  that  the  prisoners  slept  in  the  adjoining 
room,  and  that  no  person  afterwards  came  into  the 
house.  The  coroner's  jury  were  inclined  to  return 
a  verdict  oi  felo  de  se,  but  suspicion  being  excited 
against  these  individuals,  the  jury,  whose  verdict 
was  not  yet  drawn  up  in  form,  desired  that  the 
remains  of  the  deceased  might  be  taken  up,  and 
accordingly,  thirty  days  after  her  death,  they  were 
taken  up,  and  the  jury  charged  the  prisoners  with 

ip)  Rex  V.  Patch,  p.  390,  infra. 

{p)  Rex  v.  Fitter,  Warwick  Sum.  Ass.  1834,  coram  Taunton,  J. 

{g)  Paris  and  Fonblanque,  Medical  Jurisprudence,  vol.  iii.  p.  39, 


124  IN'CULPATORY    MORAL    INDICATIONS. 

the  murder.       Upon  their  trial  they  were  acquitted, 
but  so  much  against  the  evidence,  that  the  judge  let 
fall  his  opinion  that  it  were  better  an  appeal  (r)  were 
brought    than    so    foul    a    murder    should    escape 
unpunished.      Accordingly  an  appeal  was  brought  by 
the  child  against  his  father,  grandmother,  and  aunt, 
and  her  husband.     On  the  trial  of  the  appeal  before 
Chief  Justice  Hyde,  the  evidence  adduced  was,  that 
the  deceased  lay  in  a  composed  manner  in  her  bed, 
with  the  bedclothes  undisturbed,  that  her  child  lay 
by  her  side,  that  her  neck  was  broken,  and  that  her 
throat  was  cut  from  ear  to  ear.     There  was  no  blood 
in  the  bed,  except  a  tincture  on  the  bolster  where 
her  head   lay.     From   the   bed's   head   there  was  a 
stream  of  blood  on  the  floor,  which   ran  along  till  it 
pounded  in  the  bendings  of  the  floor,  and  there  was 
another  stream  of  blood  on  the  floor  at  the  bed's 
foot,  which  pounded  also  on  the  floor  to  a  very  great 
quantity  ;   but  there  was  no  communication  of  blood 
between   these  two   places,  nor  upon   the   bed.     A 
bloody  knife  was  found  in  the  morning  sticking  in 
the  floor,  at  some  distance  from  the  bed  ;    but  the 
point  of  the  knife,  as  it  stuck,  was  towards  the  bed, 
and   the   handle  from  the  bed  ;  and  there  was  the 
print  of  the  thumb  and  fingers  of  a  left  hand.      It 
was   beyond   all  question,    from    the   circumstances, 
that  the  deceased  had  been  murdered,  for  if  she  had 
committed   suicide   by   cutting   her  own  throat,  she 
could  not  by  any  possibility  have  broken  her  own 

(r)  For  an  account  of  this  obsolete  process — a  survival  of  the  primitive 
trial  by  battle — see  As/ifordw.  Tlwmfoti,  i  B.  &  Aid.  405  ;  see  p.  249, 
infra.  The  history  of  the  subject  will  be  found  in  Pollock  and  Maitiand 
Hist.  Eng.  Law  ii.  464 — 481  ;  also  Hawk  P.  C.  ii.  c.  23  ;  Stephen 
Hist.  Cr.  Law  of  England  i.  244—50. 


SIMULATION    OF    EVIDENCE.  125 

neck   in  bed.     The    father,    grandfather,   and   aunt 
were  convicted  and  executed  [s). 

In  a  more  recent  case  the  evidence,  otherwise 
doubtful,  was  rendered  quite  conclusive  by  the  forgery 
and  fabrication  of  a  letter  by  the  accused.  The 
prisoner  was  charged  with  the  murder  of  his  wife  by 
arsenical  poisoning.  The  defence  was  suicide.  He 
had  been  married  twelve  years,  lived  happily  with  his 
family,  and  had  an  excellent  character,  and  although 
empty  arsenic  paper  was  found  in  his  pocket,  his 
explanation  was  reasonable,  and  he  was  away  from 
home  at  the  time  when  his  wife  was  first  taken  ill,  while 
others  had  opportunities  of  administering  the  poison. 
There  was  little  or  no  motive  shown  for  the  crime,  and 
had  the  case  rested  there,  the  prisoner  would  probably 
have  been  acquitted.  But  it  was  proved  that  soon 
after  the  wife's  death,  he  took  a  purse  out  of  her 
pocket,  and  pretended  to  discover  a  letter  written  by 
her  to  her  sister-in-law  which  amounted  to  a  confession 
that  she  had  taken  her  own  life.  There  was  evidence 
that  this  letter  was  in  the  prisoner's  own  hand- 
writing, and  it  was  inconsistent  with  the  woman's 
dying  statements  and  with  other  circumstances  in 
the  case.  He  was  convicted,  and  before  execution 
confessed  both  the  murder  and  the  forgery  (/). 

An  unsuccessful  attempt  to  establish  an  a/idi  is 
always  a  circumstance  of  the  greatest  weight  against 

(j)  Rex  V.  Okevia7t  and  others^  14  State  Trials  1324  ;  10  Hargrat'c's 
State  Trials,  App.  ii.  p.  29. 

(/)  Reg.  V.  Beamish,  Warwick  Winter  Assize  1S61,  coram  Willes,  J» 
See  Times,  December  19th,  1861.     Ann.  Reg.  1861,  p.  250. 


126  INCULPATORY    MORAL    INDICATIONS. 

the  prisoner,  because  the  resort  to  that  kind  of 
defence  impHes  an  admission  of  the  truth  and 
relevancy  of  the  facts  alleged,  and  the  correctness  of 
the  inference  drawn  from  them  if  they  remain 
uncontradicted.  This  defence  is  frequently  fabri- 
cated, and  is  liable  to  many  sources  of  fallacy,  which 
will  be  more  appropriately  considered  in  a  subse- 
quent part  of  this  essay  ;  and  a  learned  judge  has 
said,  that  if  the  defence  turns  out  to  be  untrue,  it 
amounts  to  a  conviction  {u).  But  it  must  not  be  over- 
looked that — such  is  the  weakness  of  human  nature 
— there  have  been  cases  where  innocence,  under  the 
pressure  of  menacing  appearances,  has  fatally  com- 
mitted itself,  by  the  simulation  of  facts  for  the 
purpose  of  evading  the  force  of  circumstances  of 
apparent  suspicion.  When  the  defence  of  an  a/idi 
fails,  it  is  generally  on  the  ground  that  the  witnesses 
are  disbelieved  and  the  story  considered  to  be  a 
fabrication  ;  and  frorn  the  facility  with  which  it  may 
be  fabricated,  it  is  commonly  entertained  with 
suspicion,  and  sometimes,  perhaps,  unjustly  so  [z). 

Circumstances  such  as  those  which  have  been 
enumerated  are  justly  considered  to  be  incompatible 
with  integrity  and  Innocence,  and  referable  to  a  con- 
sciousness of  guilt  and  to  a  desire  to  evade  the  force 
of  facts  Indicative  of  it ;  and  they  consequently 
subject  the  party  guilty  of  them  to  very  unfavourable 
and  Injurious  inferences. 

Occasionally    facts   are   suppressed   or   tampered 

(u)  Per  Daly,  B.,  in  J?ex  v.  Killen,  28  St.  Tr.  1040. 
{x')  See  Rex  v.  Robinson^  Old  Bailey  Sess.  Papers,  1824. 


SIMULATION    OF    EVIDENCE.  127 

with  by  those  concerned  in  the  prosecution,  and  then 
the  same  presumption  arises,  and  generally  tells  with 
great  force  against  a  case  which  receives  such 
support.  It  is  customary  on  every  criminal  charge 
to  give  evidence  of  the  arrest  of  the  prisoner,  and 
of  his  answer  upon  arrest  to  the  charge.  When 
evidence  of  this  kind  is  omitted  without  adequate 
explanation,  it  is  always  a  circumstance  of  suspicion. 
A  remarkable  instance  of  the  kind  occurred  at  the 
Leeds  Spring  Assizes,  1886.  A  man  was  tried  for 
rape.  The  evidence  appeared  almost  conclusive. 
The  prisoner  alleged  consent,  which  was  indignantly 
repudiated  by  the  prosecutrix — a  married  woman 
living  with  her  husband,  in  whose  house  the  offence 
was  alleged  to  have  been  committed.  The  husband 
denied  that  he  had  ever  suspected  or  accused  his 
wife  of  infidelity  with  the  prisoner.  The  case 
concluded  with  the  evidence  of  a  police  inspector 
who  received  the  prisoner  into  custody  at  the  station, 
but  without  the  evidence  of  the  constable  who 
effected  the  arrest.  The  judge  insisted  upon  the 
constable  being  sent  for,  and  adjourned  the  case  for 
some  hours  for  that  purpose,  keeping  the  jury 
together  (as  was  then  necessary  on  such  a  charge)  in 
the  meantime.  When  the  constable  arrived  he  proved 
that  on  the  night  of  the  alleged  rape  he  had  been  in 
the  street  where  the  prosecutrix  and  her  husband 
lived,  when  the  husband  and  wife  were  having  a 
violent  altercation,  the  husband  having  turned  her  into 
the  street,  alleging  that  he  had  caught  her  with  the 
prisoner  under  the  most  compromising  circumstances. 
Some  two  hours  afterwards  the  husband  and  wife 
had  come  to  him  on  his  beat  and  made  an  accusation 


128  INCULPATORY    MORAL    INDICATIONS. 

of  rape  ayainst  the  prisoner.  There  was  no  dorbt 
that  the  constable's  evidence  had  been  deliberately 
suppressed,  and  the  prisoner  was  acquitted  (y). 

Section  8. 
statutory   presumptions. 

Upon  the  principle  of  the  rule  of  presumption 
ag'ainst  persons  in  whose  possession  the  fruits  of 
crime  are  discovered  recently  after  its  commission, 
many  acts  have  been  constituted  legal  presumptions 
of  guilt  by  statute,  so  as  to  throw  the  onus  of  rebut- 
ting or  displacing  such  presumptions  upon  the  party 
accused  ;  such,  for  example,  among  many  others,  as 
the  making  or  possessing,  or  buying  or  selling  coining 
tools  or  instruments  {z)  ;  the  possession  of  forged 
bank-notes,  knowing  the  same  to  be  forged,  without 
lawful  excuse  (a)  ;  the  possession  of  public  stores 
under  the  control  of  any  Secretary  of  State  or  public 
department  (d)  ;  the  acting  or  behaving  as  the 
master  or  mistress  of  a  disorderly  house  (c) ;  the 
finding  of  instruments  of  gaming  in  any  places 
suspected  to  be  used  as  a  common  gaming-house  (^), 
and  the  being  found  by  night  in  possession,  without 
"lawful  excuse,  of  any  picklock,  key,  crow,  jack, 
bit,  or  other  instrument  of  housebreaking  (^),      The 

(j)  R.  V.  Eli  Gledhtll,  May  2ist,  1886,  coram  Wills,  J. 

{z)  St.  2  W.  IV.  c.  30,  s.  10.    See  now  24  &  25  Vict.  c.  99,  s.  24. 

{a)  St.  II  G.  IV.  and  i  W.  IV.  c.  66,  ss.  12 — 19,  and  28.  See  now 
t\  &  25  Vict.  c.  98,  ss.  13  and  45. 

{b)  St.  9  &  10  W.  III.  c.  41  ;  and  39  &  40  G.  III.  c.  89.  See  now 
\}te  I'ublic  Stores  Act,  1875  (38  &  39  Vict.  c.  25,  s.  7) 

(c)  St.  21  G.  IIL  c.  49- 

r./^,  St.  8  &  9  Vict.  c.  109. 

{e)  St.  14  &  15  Vict.  c.  19,  s.  I.     See  now  24  &  25  Vict.  c.  96,  s.  58, 


STATUTORY  PRESUMPTIONS.  I2g 

revenue  laws  abound  with  similar  instances  of 
presumptions  created  for  the  purpose  of  protecting 
the  public  against  infractions  of  those  laws. 

By  a  remarkable  anomaly,  probably  grounded 
upon  some  supposed  analogy  to  the  rule  alluded  to, 
the  sale  by  a  shopman  of  a  book  or  newspaper  con- 
taining libellous  matter,  was  formerly  held  to 
constitute  a  presumption  of  publication  by  the 
authority  of  the  master,  although  no  evidence  were 
given  to  show  that  the  sale  was  with  his  authority  or 
privity  ;  it  being,  however,  open  to  him  to  contradict 
such  presumption  by  evidence  that  the  sale  was  in 
fact  unauthorized,  and  was  not  within  the  scope 
of  the  general  instructions  given  to  the  shopman  {/). 
This  carried  the  doctrine  of  criminal  liability  to  an 
unwarrantable  extent.  Lord  Campbell's  Act  [g), 
passed  in  1843,  ^^-^  brought  this  part  of  our  law  into 
harmony  with  the  other  parts  of  the  system,  by 
providing  that  whensoever,  upon  any  trial  of  any 
indictment  or  information  for  the  publication  of  a 
libel  under  the  plea  of  not  guilty,  evidence  shall 
have  been  given  which  shall  establish  a  presumptive 
case  of  publication  against  the  defendant  by  the  act 
of  any  other  person  by  his  authority,  it  shall  be  com- 
petent to  him  to  prove  that  such  publication  was  made 
without  his  authority,  consent,  or  knowledge,  and  that 
it  did  not  arise  from  want  of  due  care  on  his  part. 

(/)  Rex\.  Alinon,  20  State  Trials,  803,  at  cols.  838  and  842.  S.  C. 
5  Burr.  2686.  Rex  v.  Cvthell,  27  State  Trials,  641,  is  also  a  good 
illustration  of  the  Common  Law,  and  is  notable  for  Lord  Erskine's 
speech  on  behalf  of  the  defendant.  Cf.  Reg.  v.  Holbrook,  3  Q.  B.  D. 
60  ;  47  L.  J.  Q.  B.  35,  and  4  O.  B.  D.  42  ;  48  L.  J.  (2-  B.  113. 

(g)  St.  6  &  7  Vict.  c.  96,  s.  7.  For  the  liability  in  civil  cases,  see 
C.E.  K 


130  INCULPATORY    MORAL    INDICATIONS. 

Of  Statutory  presumptions  this  general  notice 
is  sufficient,  as  it  is  the  object  of  this  essay  to 
consider  the  natural  connection  between  facts  and 
the  presumptions  to  which  they  naturally  lead,  and 
not  to  enumerate  the  presumptions  created  by 
positive  law(//). 

It  Is  evident  that  all  such  arbitrary  presumptions 
depend  for  their  reasonable  force  and  authority  upon 
the  obnoxious  character/^/^  sc  of  the  particular  actions 
or  circumstances  which  are  thus  made  the  foundations 
of  legal  presumptions — upon  their  strict  connection 
with  and  relation  to  some  specific  legal  offence,  or  the 
intention  to  commit  such  offence — and  upon  the 
facility  of  proof  by  the  accused  of  matter  of  legal 
excuse  where  such  matter  exists. 

In  the  interpretation  of  laws  which  create  positive 
presumptions  of  guilt,  it  is  essential  to  distinguish 
between  the  letter  and  the  spirit  of  the  enactment ; 
to  such  laws  the  maxim  of  the  Civil  Law  Is  specially 
pertinent,  "  sci7''e  leges  non  est  earuni  verba  tenerey 
sed  vim  ac  potesiatem'' {{).  It  is  not  practicable 
to  anticipate  all  the  cases  which  may  fall  within 
the  language  of  the  rule,  or  to  anticipate  the  neces- 
sary exceptions  which  a  proper  regard  to  the 
intention  of  the  legislature  would  exclude  from  its 
operation,  and  which  it  is  reasonable  to  conclude 
that  the  legislature  would  have  expressly  excluded 

Enmiens  v.  Pontic,  16  O.  B.  D.  354  ;  Vizeiclly  v.  Mudie's  Select 
Library^  1900,  2  Q.  B.  170. 

{h)  See  a  copious  collection  of  such  presumptions  in  i  Taj  lor's  L. 
of  Ev.,  9th  ed.  1895,  Part  L,  ch.  5. 

(/)  Digest.  I.  iii.  17. 


STATUTORY  PRESUMPTIONS.  I3I 

if  they  had  been  foreseen.  However  peremptory 
and  apparently  conclusive,  therefore,  the  language 
of  such  enactments  may  be,  it  is  not  allowed  to 
exclude  or  control  the  just  force  and  operation  of 
such  concomitant  circumstances  as  tend  to  repel  the 
presumption  of  the  inahis  animiLS  arising  from  the 
bare  facts  which  constitute  the  presumption  {k). 

These  considerations  introduce  us  to  what  is  known 
as  the  doctrine  of  "  mens  rea,''  after  Lord  Coke's 
famous  maxim,  "  actus  non  facit  rcum,  nisi  mens  sit 
rear  It  is  a  general  and  fundamental  rule  that  the 
mind  must  be  at  fault  before  there  can  be  a  crime, 
and  criminal  statutes  must  usually  be  construed  with 
that  qualification.  But  it  is  not  an  inflexible  rule  : 
a  statute  may  relate  to  such  a  subject-matter,  and 
may  be  so  framed  as  to  make  an  act  criminal  whether 
there  has  been  an  intention  to  break  the  law  or 
not.  There  is  a  large  body  of  municipal  law  in  the 
present  clay  which  is  so  conceived.  Bye-laws  are 
constantly  made  regulating  the  width  of  thorough- 
fares, the  height  of  buildings,  and  other  matters 
necessary  for  the  general  welfare,  health,  or  con- 
venience, and  the  breach  of  them  constitutes  an 
offence,  and  is  a  criminal  matter.  In  such  cases  it 
would,  generally  speaking,  be  no  answer  to  pro- 
ceedings for  infringement  of  the  bye-law  that  the 
person  committing  it  has  bona  fide  va^idi^  an  accidental 
miscalculation  or  an  erroneous  measurement 

Whether  an  enactment  is  to  be  construed  in  this 
seii.se,  or  with  the  qualification  ordinarily  imported 

(Jc)  I'uficndorf,  lib.  v.  c.  12  ;  cf.  2  East,  P.  C.  765. 

K    2 


132  INCULPATORY    MORAL    INDICATIONS. 

into  the  construction  of  criminal  statutes  that  there 
must  be  a  guilty  mind,  must  depend  upon  the 
subject-matter  of  the  enactment,  and  the  various 
circumstances  that  may  make  the  one  construction 
or  the  other  reasonable  or  unreasonable  (/).  Regard 
must  be  had  to  the  scope  of  the  Act,  and  to  the  object 
for  which  it  was  apparently  passed  (;//).  A  few 
illustrations  of  the  application  of  these  principles 
will  be  useful,  and  will  show  how  difficult  it  is  to  lay 
down  any  absolute  rule  on  the  subject. 

A  widow  woman  was  indicted  before  Mr.  Justice 
Foster  under  9  &  10  Wm.  III.  c.  41  {71),  for  having 
in  her  custody  divers  pieces  of  canvas  marked  with 
the  king's  mark,  she  not  being  employed  by  the 
Commissioners  of  the  Navy  to  make  the  same  for 
the  kiu'T-'s  use.  The  canvas  was  marked  as  charged 
in  the  indictment,  and  was  clearly  proved  to  be  such 
as  was  made  for  the  use  of  the  navy,  and  to  have 
been  found  in  the  defendant's  custody.  She  did  not 
attempt  to  show  that  she  was  within  any  exception 
of  the  Act,  as  being  a  person  employed  to  make 
canvas  for  the  navy  ;  nor  did  she  olfer  to  produce 
any  certificate  from  any  officer  of  the  crown,  touching 
the  occasion  of  such  canvas  coming  into  her  posses- 
sion. Her  defence  was,  that  when  there  happened 
to  be  in  his  Majesty's  stores  a  considerable  quantity 
of  old  sails,  no  longer  fit  for  that  use,  it  had  been 
customary  for  the  persons  entrusted  with  the  stores 

(/)  Per  Wills,  J.,  in  Reg.  v.  Tohon,  L.  R.  23  Q.  B.  D.  at  p.  173. 
(w)  Per  Stephen,  J.,  ibid -sX  p.  191. 

{li]  This  has  been   repealed,  and    its  place   is  now  taken   by  the 
Public  Stores  Act,  1875  (38  &  39  Vict.  c.  25  s.  7). 


STATUTORY  PRESUMPTIONS.  I33 

to  make  a  public  sale  of  them  in  lots  larger  or  smaller, 
as  best  suited  the  purpose  of  the  buyers  ;  and  that 
the  canvas  produced  in  evidence,  which  had  been 
made  up  long  since,  some  for  table-linen  and  some 
for  sheeting,  had  been  in  common  use  in  the  defen- 
dant's family  a  considerable  time  before  her  husband's 
death  ;  and  upon  his  death  came  to  the  defendant, 
and  had  been  used  in  the  same  open  manner  by  her 
to  the  time  of  prosecution.  The  counsel  for  the  crown 
insisted  that  as  the  Act  allows  of  but  one  excuse,  the 
defendant,  unless  she  could  avail  herself  of  that, 
could  not  resort  to  any  other  ;  that,  if  the  canvas 
were  really  bought  of  the  commissioners,  or  of  per- 
sons actinof  under  them,  there  ou^ht  to  have  been 
a  certificate  taken  at  the  time  of  the  purchase,  and 
that  the  second  section  admits  of  no  other  excuse. 
But  the  learned  judge  was  of  opinion,  that  though 
the  clause  of  the  statute  which  directs  the  sale  of 
these  things  had  not  pointed  out  any  other  way 
of  indemnifying  the  buyer  than  the  certificate,  and 
though  the  second  section  seemed  to  exclude  any 
other  excuse  for  those  in  whose  custody  they  should 
be  found,  yet  still  the  circumstances  attending  every 
case  which  might  seem  to  fall  within  the  Act,  ought 
to  be  taken  into  consideration ;  otherwise  a  law 
calculated  for  wise  purposes,  might,  by  a  too  rigid 
construction  of  it,  be  made  a  handle  for  oppression. 
There  was  no  room  to  say  that  this  canvas  came 
into  the  possession  of  the  defendant  by  any  act  of 
her  own  ;  it  was  brought  into  family  use  in  the  life- 
time of  her  husband,  and  continued  so  to  the  time 
of  his  death  ;  and  by  act  of  law  it  came  to  her. 
Things  of  that  kind  have  frequently  been  exposed 


134  INCULPATORY    MORAL    INDICATIONS. 

to  public  sale  ;  and  though  the  Act  pointed  out  an 
expedient  for  the  indemnity  of  buyers,  yet  probably 
few  buyers,  especially  where  small  quantities  had 
been  purchased  at  one  sale,  had  used  the  caution 
suo-crested  by  the  Act.  And  if  the  defendant's  hus- 
band  really  bought  the  linen  at  a  pu'olic  sale,  but 
neglected  to  take  a  certificate,  or  did  not  preserve 
it,  it  would  be  contrary  to  natural  justice,  after  such 
a  length  of  time,  to  punish  her  for  his  neglect.  He 
therefore  thought  the  evidence  given  by  the  defen- 
dant proper  to  be  left  to  the  jury  ;  and  directed 
them,  that  if  upon  the  whole  evidence  they  were  of 
opinion  that  the  defendant  came  to  the  possession 
of  the  linen  without  any  fraud  or  misbehaviour 
on  her  part,  they  would  acquit  her;  and  she  was 
accordingly  acquitted  [o). 

On  the  other  hand,  where  a  woman  was  indicted 
under  8  &  9  Vict.  c.  ioo,  s.  44,  for  receiving  more 
than  two  lunatics  into  a  house  not  duly  licensed,  and 
the  jury  found  that  she  did  receive  more  than  two 
persons  who  were  lunatics,  but  that  she  believed 
honestly  and  on  reasonable  grounds  that  they  were 
not  lunatics,  Mr.  Justice  Stephen  held  this  to  be 
immaterial,  having  regard  to  the  scope  and  objects 
of  the  Act,  and  his  ruling  was  upheld  (/).  Another 
important  case  to  the  same  effect  is  where  a  man 
was  convicted  under  24  &  25  Vict.  c.  100,  s.  55,  of 
taking  an  unmarried  girl  under  the  age  of  sixteen 

(o)  Foster's  Discourses  on  the  Crown  Law,  3rd  ed.  1792,  App. 
p.  439.  And  see  2  East,  P.  C.  756.  See  also  per  Lord  Kenyon  in 
/^ex  V.  Banks,  i  Esp.  144,  and  Coltman,  J.,  in  Reg.  v.  Wiluiot,  3  Cox, 
C.  C.  281,  similar  cases  founded  upon  the  same  statute. 

(J>)  Reg.  V.  Bishop,  5  Q.  B.  D.  259. 


STATUTORY  PRESUMPTIONS.  I35 

years  out  of  the  possession  and  against  the  will  of" 
her  father.  The  evidence  showed  that  the  grirl  had 
gone  to  the  prisoner  willingly,  and  told  him  that  she 
was  eighteen,  and  the  jury  found  that  he  believed 
her  statement,  and  that  the  belief  was  reasonable. 
The  case  was  argued  before  all  the  judges,  who  by 
a  majority  of  fifteen  to  one  upheld  the  conviction, 
basing  their  decision  partly  upon  the  history  and 
scope  of  the  Act,  and  partly  upon  the  ground  that 
even  if  the  girl  had  been  eighteen,  the  man  had 
done  a  thing  which  was  wrong  in  itself  The  judges 
fully  recognize  the  doctrine  of  mens  rea,  which  formed 
the  basis  of  a  lengthy  dissentient  judgment  from  the 
late  Lord  Esher  (^). 

In  18S9  this  question  was  again  very  fully  debated 
over  a  case  of  bigamy.  The  defendant  married 
Tolson  in  i8So,  and  was  deserted  by  him  in  1881. 
She  and  her  father  made  inquiries  about  him,  and 
learned  from  his  brother  and  from  general  report 
that  he  had  been  lost  in  a  vessel  bound  for  America, 
which  went  down  with  all  hands  on  board.  Six 
years  after  his  disappearance  she  married  another 
man,  who  knew  all  these  circumstances.  Tolson 
afterwards  returned.  The  woman  was  indicted  for 
bigamy  under  section  57  of  the  same  Act  (be  It 
noted)  upon  which  the  indictment  in  the  last  case 
was  framed,  and  was  convicted,  the  jury  stating,  in 
answer  to  a  question  put  by  Mr.  Justice  Stephen 
for  the  purpose  of  raising  the  point,  that  they  thought 
that  she  in  good  faith  and  on  reasonable  grounds 
believed  her  husband  to  be  dead  at  the  time  of  the 

{g)  Reg.  V.  Prince,  L.  R.  2  C.  C.  R.  154. 


136  INCULPATORY    MORAL    INDICATIONS. 

second  marriage.  The  Court  for  Crown  Cases 
Reserved,  consisting  (  f  fourteen  judges,  was  divided 
in  oi)inion,  the  majority  of  nine  holding  that  the 
bona  fide  behef  in  the  death  of  the  husband  was  a 
good  defence  in  spite  of  the  clear  words  of  the  statute, 
the  reasoning  being  that  the  presumption  of  guilt 
raised  by  a  statutory  prohibition  cannot  be  decided 
without  reference  to  surrcunding  circumstLinces(r). 

Upon  an  indictment  under  the  statute  5  &  6  Wm. 
IV.  c.  19,  which  makes  it  a  misdemeanour  in  the 
master  of  a  vessel  to  leave  a  seaman  behind,  and 
enacts  that  the  only  defence  which  he  can  set  up  is 
the  production  of  the  certificate  of  the  consul  or 
other  party  meniioned  in  the  statute,  it  was  held 
nevertheless  that  a  defendant  might  show  that  it 
was  impracticable  to  obtain  such  certificate  (^),  and 
this  qualification  has  been  introduced  into  subsequent 
statutes,  7  &  8  Vict.  c.  112,  s.  48;  17  &  18  Vict, 
c.  104,  s.  208  ;  and  the  Merchant  Shipping  Act,  1894 
(57  &  58  Vict.  c.  60,  s.  188),  which  is  the  present 
code  on  this  subject  (/). 

(r)  Reg.  V.  Tolsott,  23  Q.  B.  D.  i68. 

{s)  Reg.  V.  Dtmnett,  i  C.  &  K.  425. 

(/)  It  is  impossible  in  a  work  of  this  kind  to  discuss  all  the  recent 
cases  which  deal  with  the  doctrine  of  fnens  rea  in  relati'  n  to  statutory 
offences.  At  common  law  it  was  no  defence  to  an  indictment  for  a 
public  nuisance  [e.g.  obstructing  the  highway)  that  the  defendant  did 
not  know  of  it,  or  that  his  servants  committed  it  contrary  to  his  express 
orders.  This  was  the  one  exception  where  the  civil  doctrine  of 
respondeat  superior  was  applied  criminally.  (Cf.  Reg.  v.  Stephens, 
L.  R.  I  Q.  B.  702.)  This  is  perhaps  the  clue  to  the  kind  of  offences 
under  modern  statutes  to  which  an  innocent  mind  is  no  defence. 
Many  acts  which  are  not  criminal  in  any  real  sense  of  the  word  are 
made  punishable,  in  the  public  interest  as  quasi-public  nuisances, 
upon   summary    conviction     (cf.    Coppen    v.   Moore,    No.     2,    1898, 


scientific  testimony.  i57 

Section  9. 

SCIKNTIFIC    testimony. 

The  testimony  of  skilled  or  scientific  witnesses  con- 
stitutes a  very  important  source  of  circumstantial 
evidence,  especially  in  reg^ard  to  the  proof  of 
the  corpus  delicti  in  cases  of  suspected  homicide, 
and  in  inquiries  whether  a  person  is  cioli  capax. 
Such  evidence  in  its  details  belono^s  to  other  depart- 
ments of  science;  but  as  the  principles  which  g-overn 
its  reception  and  application  fall  exclusively  within  the 
province  of  jurisprudence,  some  general  observations 
upon  it  are  necessary. 

If  it  be  true  that  proof  is  nothing  more  than  a 
presumption  of  the  highest  order  (?/),  a  fortiori  is 
such  the  case  with  respect  to  the  testimony  of  skilled 
or  scientific  witnesses,  which  not  unfrequently  pre- 
sents a  sequence  of  presumptions  grounded  upon 
conflicting  opinions,  even  with  regard  to  the  actual 
state  of  science.  Such  testimony  is  therefore,  in  its 
very  nature,  siii  generis^  and,  according  to  the  attain- 
ments, means   of  knowledge,  and  character  of  the 

2  Q.  B.  306),  and,  following  out  the  analogy  of  an  indictment  for 
nuisance,  there  are  cases  where  the  proceedings  are  criminal  in  form, 
but  are  really  only  a  summary  mode  of  enforcing  a  civil  right.  (Cf. 
per  Wright,  J.,  in  SJicrras  v.  De  Riitzen^  1895,  i  Q.  B.,  at  p.  922.)  The 
absence  of  mois  rca  has  been  held  to  be  no  defence  under  the  Sale  of 
Food  and  Drugs  Act  ;  see  Betts  v.  Armstead,  20  Q.  B.  D.  771  ;  Pai?i 
V.  Boiightwood,  24  Q.  B.  D.  353  :  while  it  was  a  defence  under  the 
Licensing  Acts  in  Sherras  v.  De  Ruizcn  (sitprd),  and  Somerset  v. 
Wade,  1894,  I  Q.  B.  574,  and  under  the  Contagious  Diseases 
(Animals)  Act  in  Nichols  v.  Hall,  L.  R.,  8  C.  P.  322.  See  also  other 
cases  cited  in  these  references.  Cf.  pp.  28  and  131,  supra. 
(«)  See  p.  41,  supra. 


138  INCULPATORY    MORAL    INDICATIONS. 

witness,  may  be  of  little  moment,  or  deserving  of 
entire  and  undoubting  confidence. 

Science,  moreover,  is  never  final,  and  new  facts 
are  every  day  found  to  disturb  or  modily  long- 
established  convictions.  Thus  Reinsch's  test,  which 
liad  long  been  confidently  employed  for  the  sepa- 
ration of  arsenic,  was,  in  an  important  case  in  the 
year  1859,  discovered  to  be  fallacious  without  pre- 
cautions which  had  not  been  usual,  and  it  was  shown 
that  arsenic  found  in  the  particular  mixture  which 
was  there  in  question  had  been  set  free  from  the 
copper  employed  in  the  experiment  (.r). 

In  many  countries,  this  kind  of  testimony,  techni- 
cally termed  expertise,  is  invested  with  a  sort  of 
semi-official  authority,  and  special  rules  are  laid 
down  for  the  estimation  of  its  proving  force  {y). 
By  the  law  of  England,  however,  no  peculiar 
authority  is  given  to  the  testimony  of  witnesses 
of  this  description  ;  its  value  is  estimated  by  the 
same  general  principles  as  are  applied  in  estimating 
the  capacity,  credit,  and  weight  of  all  other  wit- 
nesses {z)y  and  the  Courts  have  wisely  repelled  all 
attempts  to  depart  from  the  established  and  ordinary 
rules  of  evidence  and  judgment.  On  a  trial  for 
murder,  before  Lord  Chief  Justice  Tindal,  several 
medical  witnesses,  who  had  been  present  during  the 

[x)  Reg.  V.  Smcf/uirst,  C.  C.  C.  Aug.  1859,  Sess.  Papers.  The  prisoner 
was  convicted,  but  was  subsequently  granted  a  free  pardon,  presumably 
on  the  ground  that  llie  medical  and  chemical  evidence  was  not  satisfac- 
tory.    See  Taylor's  Medical  Jurisprudence,  4th  ed.  1894,  vol.  i.  p.  199. 

{)')  Traite  dela  Preuve,  par  Mittermaier,  c.  26. 

{g)  See  Best  on  Evidence  8th  ed.  1893,  pp.  465-471. 


SCIENTIFIC    TESTIMONY.  139 

trial  and  heard  the  whole  of  the  evidence,  but  had 
no  other  means  of  forming  an  opinion  on  the 
question,  were  admitted  to  testify  that  in  their 
judgment  the  prisoner  was  insane.  But  the  pro- 
priety of  admitting  such  evidence  having  been 
made  the  subject  of  discussion  in  the  House  of 
Lords,  the  question  was  submitted  to  the  judges, 
who  were  of  opinion  that  a  medical  witness  could 
not  in  strictness  be  asked  his  opinion  as  to  the 
state  of  the  prisoner's  mind  at  the  time  of  the 
commission  of  the  alleged  crime,  or  whether  he 
was  conscious  at  the  time  of  doing  the  act  that 
he  was  acting  contrary  to  law,  or  whether  he  was 
labouring  under  any  and  what  delusions,  because 
each  of  those  questions  involves  the  determination 
of  the  truth  of  the  facts  deposed  to,  which  it  is  for 
the  jury  to  decide,  and  the  questions  are  not  mere 
questions  upon  a  matter  of  science — as  to  which 
such  evidence  is  admissible — but  that  where  the 
facts  are  admitted,  or  not  disputed,  and  the  ques- 
tion becomes  substantially  one  of  science  only,  it 
may  be  convenient  to  allow  the  question  to  be  put 
in  that  general  form,  though  the  same  cannot  be 
insisted  on  as  matter  of  right  (a). 

On  a  subsequent  occasion,  Mr.  Baron  Alderson, 
v/ith  the  concurrence  of  Mr.  Justice  Cresswell, 
refused  to  allow  a  witness  to  be  asked  whether, 
from  all  the  evidence  he  had  heard,  both  for 
the  prosecution  and  defence,  he  was  of  opinion 
that  the   prisoner    at    the    time    he    committed    the 

{a)  Res;:  v.  ArNaghicn,  10  CI.  &  F.  200-21 1  ;  i  C.  &  K.  130,  note  {a) ; 
8  Scott,  N.  R.59S. 


140  INCULPATORY    MORAL    INDICATIONS. 

act  was  of  iinsoiiiul  mind,  and  said  that  the  proper 
mode  is  to  ask  w  hat  are  the  symptoms  of  insanity, 
or  to  take  jjarticiilar  facts,  and,  assuming  them  to 
be  true,  to  ask  whether  they  indicate  insanity  on  the 
part  ot  the  prisoner ;  but  to  take  the  course 
suggested,  he  said,  was  really  to  substitute  the 
witness  for  the  jury,  and  allow  him  to  decide 
upon  the  whole  case  ;  that  the  jury  must  have  the 
facts  before  them,  and  that  they  alone  must  inter- 
pret them  by  the  general  opinions  of  scientific 
men  {d).  Upon  a  trial  for  murder,  where  the  death 
was  alleged  to  have  been  caused  by  suffocation, 
a  physician  who  had  attended  in  court  and  heard 
the  evidence,  was  asked  his  opinion  as  to  the  cause 
of  death  ;  but  Mr.  Justice  Patteson  expressed  him- 
self very  strongly  upon  the  unsatisfactory  nature  of 
such  evidence,  the  witness  not  having  seen  the  body, 
and  his  opinion  being  founded  on  the  facts  stated  by 
other  witnesses  {c).  These  cases  have  been  followed 
by  a  series  of  determinations  in  which  such  evidence 
has  been  held  to  be  inadmissible  {d). 

The  reasonable  principle  appears  to  be,  that 
scientific  witnesses  shall  be  permitted  to  testify  only 
to  such  matters  of  fact  as  have  come  within  their 
own  cognizance,  or  as  they  have  acquired  a  know- 
ledge of  by  their  reading,  and  to  such  inferences 
from  them,  or  from  other  facts  provisionally  assumed 

(J?)  Reg.  V.  Fiances.,  5  Cox,  C.  C.  57. 

(t)  Reg.\,  Ne-wion^  Shrewsbury  Spring  Assizes,  1850,  see  pp.  148-154, 
infra. 

{d)  Reg.  V.  Pate,  C.  C.  C.  12  July,  1850  ;  Doe  d.  Bainbridge  v.  Bain- 
h  uige,  4  Cox,  C.  C.  454  ;  Reg.  v.  Layion,  ib.  149  ;  Sills  v.  Broix  n,  9  C. 
&P.601. 


SCIENTIFIC    TESTIMONY.  I4I 

to  be  proved,  as  their  particular  studies  and  pursuits 
specially  qualify  them  to  draw  ;  so  that  the  jury 
may  thus  be  furnished  with  the  necessary  scientific 
criteria  for  testing  the  accuracy  of  their  conclusions, 
and  enabled  to  form  their  own  independent  judgment 
by  the  application  of  those  criteria  to  the  facts 
established  in  evidence  before  them. 

But  where  the  witnesses  are  men  of  unquestionable 
character  and  ability,  it  can  hardly  be  material 
whether  the  question  is  asked  in  a  more  or  less  direct 
form  ;  especially  as  there  can  be  no  difficulty  in  so 
shaping  the  question  as  to  mask,  while  it  substantially 
involves,  the  precise  objection ;  and  in  several 
subsequent  cases  medical  witnesses  have  been 
permitted  without  objection  to  give  their  opinions  as 
to  the  sanity  of  parties  charged  with  crime,  as 
grounded  upon  the  evidence  that  had  been  adduced 
both  for  the  prosecution  and  the  defence.  Such 
evidence  is  however  technically  irregular,  and  an 
objection  to  it  must,  if  made,  prevail  {e).  In  other 
medical  cases,  as  for  instance  where  there  is  a  charge 
of  negligence  against  a  medical  man  or  in  any  case 
involving  scientific  opinion,  the  proper  way  to  elicit 
the  witness's  evidence  is  to  put  a  hypothetical  case 
to  him  assuminor  a  state  of  facts  identical  with  those 
admitted  or  proved  before  the  Court,  and  to  ask  his 
opinion  on  those  facts.  Such  a  course  is  free  from 
objection,  and  an  answer  so  obtained  is  more 
satisfactory  than  an  opinion  grounded  upon  what 
the  witness   may   have  heard,    the  value    of   which 

(<?)  Reg.  V.  BaraneUi,  C.  C.  C.  Ap.  1855  ;    Reg.  v.   Wcstron,  C.  C.  C 
Feb.  1856  ;  Starkie's  L.  of  Ev.,  4th  ed.  175,  note  (/). 


142  INCULPATORY    MORAL    INDICATIONS. 

entirely  depends  upon  how  much  he  heard  or  took 
in(/). 

It  is  scarcely  necessary  to  add,  that  scientific 
evidence,  being  generally  matter  of  opinion,  can 
seldom  be  implicitly  adopted.  Lord  Cottenham 
said,  he  had  seen  enough  of  professional  opinions  to 
be  aware  that  in  matters  of  doubt,  upon  which  the 
best  constructed  and  best  informed  minds  may  differ, 
there  is  no  difficulty  in  procuring  opinions  on  either 
side  {£).   • 

A  learned  writer  on  the  Law  of  Scotland  observes, 
that  "  there  is  perhaps  no  kind  of  testimony  more 
subject  to  bias  in  favour  of  the  adducer  than  that  of 
skilled  witnesses ;  for  many  men,  who  would  not 
willingly  misstate  a  simple  fact,  can  accommodate 
their  opinions  to  the  wishes  of  their  employers,  and 
the  connection  between  them  tends  to  warp  the 
judgment  of  the  witnesses  without  their  being 
conscious  of  it ;  and  hence  skilled  witnesses,  in 
questions  of  handwriting,  can  usually  be  got  in  equal 
numbers  on  either  side  ;  and  engineers  are  more 
frequently  like  counsel  for  their  employers  than  like 
witnesses  giving  their  real  opin  ons  on  oa.th."  [/i). 
Nor  is  it  possible,  after  the  discreditable  exhibitions 
which  have  occasionally  taken  place  in  our  Courts  of 
justice,    to    restrict    the    foregoing     reproaches    to 

(/)  Fc7iivick  V.  Bell,  I  C.  &  K.  312  ;  Malton  v.  Nisbet,  i  C.  &  P.  72  ; 
Rex  V.  Wright,  R.  &  R.  456. 

{£)  In  re  Dyce  Sombre,  i  Mac.  &  G.  at  p.  128. 

(//)  2  Dickson's  Law  of  Evidence  in  Scotland,  §  1999,  p.  996  ;  and 
see  the  language  of  Lord  Campbell  in  The  Tracy  Peerage,  10  C.  &  F, 
191. 


SCIENTIFIC    TESTIMONY.  I43 

witnesses  taken  from  the  particular  professions  which 
have  been  enumerated.  Happily,  however,  such 
cases  are  but  exceptional  ;  and  true  scientific  know- 
ledj^e,  under  the  government  of  high  principle,  is  of 
the  greatest  value,  as  subsidiary  to  the  ends  of 
justice  (z). 

Some  valuable  remarks  upon  this  kind  of  evidence 
were  made  by  Lord  Chief  Justice  Cockburn,  upon  a 
trial  for  murder,  at  Taunton  Spring  Assizes,  1857. 
The  murder  was  effected  by  cutting  the  throat.  A 
knife  was  found  on  the  person  of  tlie  prisoner,  with 
stains  of  blood  upon  it  ;  and  it  was  contended  that 
the  murder  had  been  effected  with  this  weapon,  while 
it  was  alleged  on  the  part  of  the  prisoner  that  it  had 
been  used  for  cutting  raw  beef.  A  professional 
analyst  called  on  the  part  of  the  prosecution  stated 
that  the  blood  had  not  coagulated  till  it  was  on  the 
knife,  that  the  knife  had  been  immersed  in  living- 
blood  up  to  the  hilt,  and  that  it  was  not  the  blood  of 
an  ox,  a  sheep,  or  a  pig.  His  opinion  was  grounded 
upon  the  relative  sizes  of  the  globules  of  blood  in 
man  and  other  animals,  that  of  man  being  stated  to 
be  i-3400th  of  an  inch,  of  the  ox  i-530oth,  of  the 
sheep  I -5 200th,  and  of  the  pig  i -4500th,  the  relative 
sizes  being  as  53  to  34  in  the  ox,  52  to  34  in  the 
sheep,  and  45  to  34  in  the  pig.  The  learned  judge 
said,  "  The  witness  had  said  the  blood  on  the  knife 
could  not  be  the  blood  of  an  animal  as  stated  by  the 
prisoner,  and  took  upon  himself  to  say  that  it  was  not 
the  blood  of  a  dead  animal  ;  that  it  was  living  blood, 

(/)  On  the  subject  of  scientific  evidence,  see  inj'ra,  Ch.  VII.  8.  4 
(poisoning),  and  ibid.  s.  5  (infanticide). 


J44  IN'CULPATORV    MORAL    INDICATIONS. 

and  that  it  was  human  blood,  and  he  had  shown  tliem 
the  mar\ellous  powers  of  the  modern  microscope. 
At  the  same  time,  admitting  the  great  advantages 
of  science,  they  were  coming  to  great  niceties 
indeed  wiien  they  speculated  upon  things  almost 
beyond  perception,  and  he  would  advise  the 
jury  not  to  convict  on  this  scientific  speculation 
alone."  The  case  was  conclusive  on  the  general 
evidence  (/'). 

The  net  result  of  scientific  research  would  appear 
to  be  roughly  as  follows  (/)  : — 

There  are  three  classes  of  tests  for  the  discovery  of 
blood  in  spots  and  stains.  Spectroscopic  examination 
may  ascertain  in  a  very  reliable  way  the  presence  of 
blood  even  in  very  minute  quantities.  If  the 
suspected  matter  gives  the  characteristic  spectra 
in  each  of  a  certain  series  of  experiments  made 
under  well-known  conditions,  it  is  certain  that 
blood  is  present,  and  some  estimate  can  be  formed 
of  the  probable  age  of  the  bloodstain. 

{k)  Reg.  V.  Nation,  Taylor's  Medical  Jurisprudence,  4th  ed.  1894, 
vol.  i.  pp.  560  and  600.  As  to  the  extent  to  which  such  evidence  can 
be  relied  upon,  see  ibid,  at  pp.  594-604. 

(/)  Dr.  Dupre,  F.R.S  ,  has  kindly  revised  the  statements  in  the  text 
as  to  the  detection  of  bloodstains,  and  the  Editor  is  indebted  to  him 
for  this  and  the  two  following  notes. 

In  the  first  place,  whilst  the  solution  is  being  prepared  for  examina- 
tion, the  time  taken  for  the  colouring  matter  to  dissolve  in  some 
measure  indicates  the  age  of  the  stain.  As  a  rule  the  fresher  the 
blood  the  more  readily  does  the  colouring  matter  dissolve  ;  the  older 
the  blood  the  slower  the  process  of  solution.  In  the  second  place, 
recent  bloodstains  give  the  absorption  spectrum  of  hsemoglobin  ;  blood- 
stains which  have  been  exposed  for  some  time  to  the  action  of  the 
air  give  the  absorption  spectrum  of  methsemoglobin  ;  still  older 
stains  that  of  haematin.     See  also  an  important  note  p.  423,  infra. 


SCIENTIFIC    TESTIMONY.  I45 

Chemical  tests  will  detect  the  presence  of  blood  and 
may  be  relied  upon  if  the  suspected  matter  answers 
throughout  the  series  to  the  behaviour,  under  like  con- 
ditions, of  blood.  But  with  either  method  the  mere 
fact  that  some  small  proportion  of  the  tests  fails  to 
produce  the  definite  and  characteristic  results  sought 
will  not  suffice  to  negative  the  presence  of  blood. 

Microscopical  examination  may  satisfactorily 
establish  the  presence  of  red  corpuscles  which  are 
found  in  nothing  but  blood  ;  but  much  of  its  value 
depends  upon  the  freshness  of  the  matter  to  be 
examined.  Whilst  the  microscopic  identification 
of  blood  corpuscles  is  a  positive  proof  of  the 
presence  of  blood,  the  failure  to  find  any  is  by  no 
means  conclusive  of  its  absence.  Much  the  same 
may  be  said  with  regard  to  the  spectroscopic 
examination.  Practically  the  only  tests  capable  of 
proving  the  negative  are  chemical  tests.  If  every 
chemical  test  yields  a  negative  result,  no  blood  can  be 
present,  whether  the  stain  be  new  or  old,  provided  that 
a  fair  amount  of  material  be  available  for  examination. 
The  best  negative  test,  however,  is  the  identification 
of  the  substance  constituting  the  stain.  Microscopic 
examination  does  not  interfere  with  the  subsequent 
application  to  the  same  matter  cf  chemical  or 
spectroscopic  investigation,  and  it  should  therefore 
be  the  first  applied  where  the  material  is  scanty  in 
quantity  \m).  All  three  methods  should  be  used  in 
important  investigations. 

{ni)  Spectroscopic  analysis  destroys  the  blood  corpuscles  ;  micro- 
scopic examination  has  no  such  consequence  and  therefore  does  not 
affect  subsequent  examinations,  spectroscopic  or  chemical. 
C.E.  L 


146  INCULPATORY    MORAL    INDICATIONS. 

The  examination  of  blood  recently  shed  presents 
fewer  difficulties  than  that  of  old  blood,  but  unless 
the  blood  corpuscles  have  been  broken  down  by 
decomposition  or  by  application  of  water  (/;),  and 
have  so  lost  their  characteristic  appearance,  the  mere 
age  of  the  bloodstain,  even  though  considerable, 
does  not  prevent  the  satisfactory  application  of 
microscopic  investigation.  Upon  neither  spectro- 
scopic nor  chemical  nor  microscopic  examination 
can  much  reliance  be  placed  unless  it  has  been  made 
by  a  person  thoroughly  well  versed  in  the  use  and 
practice  of  the  method  in  question.  No  known 
processes  have  at  present  satisfactorily  distinguished 
between  human  blood  and  that  of  the  other 
mammalia  (except  camels),  but  mammalian  blood 
'can  be  conclusively  distinguished  from  that  of  birds, 
fishes  and  reptiles. 

The  following  cases  are  remarkable  as  exempli- 
fying the  inconclusiveness  of  scientific  evidence, 
when  uncorroborated  by  conclusive  facts,  physical  or 
moral. 

A  young  man  was  tried  for  the  murder  of  his 
brother,  who  resided  with  their  father,  and  over- 
looked his  farm.  The  prisoner,  who  lived  about 
twenty  miles  from  his  father's  house,  went  on  a 
visit  to  him,  and  on  the  day  after  his  arrival  his 
brother  was  found  dead  in  the  stable,  not  far  from 
a  vicious  mare,  with  her  traces  upon  his  arm  and 

(«)  Blood  corpuscles  are  so  extremely  minute  that  they  cannot 
easily  be  destroyed  by  mechanical  violence,  whereas  when  placed  in 
contact  with  water  they  swell  up  and  burst  in  a  very  short  time. 


SCIENTIFIC    TESTIMONY.  I47 

shoulders  ;  two  other  horses  were  in  the  stable,  but 
they  had  their  traces  on.  Suspicion  fell  upon  the 
prisoner,  who  was  on  bad  terms  with  his  brother,  and 
the  question  was  whether  the  deceased  had  been 
killed  with  a  spade,  or  by  kicks  from  the  mare  ? 
The  spade  was  bloody,  but  it  been  inadvertently 
used  by  a  boy  in  cleaning  the  stable ;  and  the  cause 
of  death  could  only  be  determined  by  the  character 
of  the  wounds.  There  were  two  straight  cuts  on 
the  left  side  of  the  head,  one  about  five  and  the 
other  about  two  inches  long,  which  had  apparently 
been  inflicted  by  a  blunt  instrument.  On  the  right 
side  of  the  head  there  were  three  irregular  wounds, 
tw^o  of  them  about  four  inches  in  length,  partaking 
of  the  appearances  of  both  lacerated  and  incised 
wounds.  There  was  also  a  wound  on  the  back  part 
of  the  head,  about  two  inches  and  a  half  long. 
There  was  no  swelling  around  any  of  the  wounds, 
the  integuments  adhering  firmly  to  the  bones  ;  and, 
except  where  the  wounds  were  inflicted,  the  fracture 
of  the  skull  was  general  throughout  the  right  side, 
and  extended  along  the  back  of  the  head  toward  the 
left  side,  and  a  small  part  of  the  temporal  bone  came 
away.  The  deceased  was  found  with  his  hat  on, 
which  was  bruised,  but  not  cut,  and  there  were  no 
wounds  on  any  other  part  of  the  body.  Two 
surgeons  expressed  a  positive  opinion  that  the 
wounds  could  not  have  been  inflicted  by  kicks  from 
a  horse,  grounding  that  opinion  principally  on  the 
distinctness  of  the  wounds,  the  absence  of  con- 
tusion, the  firm  adherence  of  the  integuments,  and 
the  straight  lateral  direction  and  similarity  of  the 
wounds ;    whereas,    as    they    stated,    the    deceased 

L   2 


148  INCULPATORY    MORAL    INDICATIONS. 

would  have  fallen  from  the  first  blow  if  he  had  been 
standing-,  and  if  lyin^r  down,  the  wounds  would  have 
been  perpendicular ;  and  moreover  they  were  of 
opinion  that  the  wounds  could  not  have  been 
inflicted  if  the  hat  had  been  on  the  deceased's  head 
without  cutting  the  hat,  and  that  he  could  not  have 
put  on  his  hat  after  receiving  any  of  the  wounds. 
The  learned  judge,  however,  stated  that  he  remem- 
bered a  trial  at  the  Old  Bailey  where  it  had  been 
proved  that  a  cut  and  a  fracture  had  been  received 
without  having  cut  the  hat  ;  and  evidence  was 
adduced  of  the  infliction  of  a  similar  wound  by  a 
kick  without  cutting  the  hat.  The  prisoner  was 
acquitted  {0). 

A  woman  who  was  tried  for  the  murder  of  her 
mother,  had  lived  for  nine  or  ten  years  as  house- 
keeper to  an  elderly  gentleman,  who  was  paralyzed 
and  helpless  ;  the  only  other  inmate  being  another 
female  servant,  who  slept  on  a  sofa  in  his  bedroom 
to  attend  upon  him.  The  deceased  occasionally 
visited  her  daughter  at  her  master's  house,  and 
sometimes  stopped  all  night,  sleeping  on  a  sofa  in 
the  kitchen.  She  came  to  see  her  daughter  about 
eight  o'clock  one  night  in  December,  184.8  ;  the 
other  servant  retired  to  bed  about  half-past  nine, 
leaving  the  prisoner  and  her  mother  in  the  kitchen, 
and  she  afterwards  heard  the  prisoner  close  the  door 
at  the  foot  of  the  stairs,  which  was  usually  left  open 
that  they  might  hear  their  master  if  he  wanted 
assistance.       The    prisoner    usually    slept    upstairs. 

{0)  Rex  V.  Booth,  Warwick  Spring  Assizes,  1808,  coram  Wood,  B. 


SCIENTIFIC    TESTIMONY.  I49 

About  two  o'clock  in  the  morning  the  other  servant 
was  aroused  by  the  smell  of  fire,  and  a  sense  of 
suffocation,  and  found  the  bedroom  full  of  smoke; 
upon  which  she  ran  downstairs,  finding  the  door  at 
the  bottom  of  the  stairs  still  closed.  As  she  went 
downstairs  she  saw  a  light  in  the  yard,  and  she  found 
the  kitchen  full  of  smoke,  and  very  wet,  particularly 
near  the  fireplace,  as  also  was  the  sofa,  but  there 
was  very  little  fire  in  the  grate.  She  then  unfastened 
the  front  door,  and  ran  out  to  fetch  her  master's 
nephew,  who  lived  near,  and  who  hastened  to  the 
house.  He  found  the  front  door  fastened,  but  was 
admitted  by  the  prisoner  at  the  back  door.  He  at 
once  hastened  upstairs,  and  ascertained  that  his  uncle 
was  safe,  and  then  came  down  into  the  kitchen, 
where  he  found  the  sofa  was  on  fire,  and  threw  some 
water  upon  it.  He  then  went  to  let  the  servant  girl, 
who  had  fetched  him,  in  at  the  front  door,  which  he 
found  bolted,  and  not  merely  latched.  He  then 
again  went  upstairs  with  the  servant  to  his  uncle's 
room,  and  they  raised  him  up  in  bed,  and  saw  that 
he  was  all  right.  On  returning  to  the  kitchen,  they 
found  the  place  was  very  wet ;  a  little  fire  was  still 
smouldering  on  the  sofa,  which  they  at  once  extin- 
guished. The  pillows  and  entire  back  part  of  the 
sofa-cover  were  burnt  to  the  breadth  of  a  person's 
shoulders. 

The  prisoner  then  came  in  from  the  back  premises 
in  her  night-dress;  she  was  described  as  not  drunk, 
but  not  quite  sober.  She  took  a  bottle  of  rum  from 
the  cupboard,  and  drank  from  it,  and  after  that 
she  soon  became  thoroughly  intoxicated,  and  lay 
down  on  the  sofa.     The  girl  then  went  out  of  the 


150  INCULPATORY    MORAL    INDICATIONS. 

kitchen  towards  the  brewhouse,  and  found  the 
deceased  lying  on  her  face  on  the  steps  of  the 
brewhouse,  apparently  burnt  to  death.  Her  arms 
were  crossed  in  front  over  her  breast,  or,  according- 
to  one  witness,  across  her  face  ;  on  the  back  of 
the  head  lay  a  piece  of  the  sofa-cover,  and  near  the 
body  w^as  a  cotton  bag  which  had  been  used  in  the 
house  indiscriminately  as  a  bag  or  a  pillow  ;  it  was 
besmeared  with  oil.  Near  the  feet  of  the  body  were 
the  remains  of  four  pairs  of  sheets  which  had  been 
in  the  kitchen  the  night  before.  They  were  almost 
entirely  consumed  by  fire  ;  what  was  left  of  them 
was  wet.  The  prisoner's  clothes  were  on  a  chair  in 
the  kitchen — the  explanation  being  given  that  she 
was  in  the  habit  of  undressing  there.  Holes  had 
been  burnt  through  them,  and  it  was  found  that  the 
prisoner's  hands  were  scorched  and  blistered,  and 
that  she  had  burns  on  her  arms  and  body  corre- 
sponding with  the  burns  in  her  clothes.  It  appeared 
from  the  state  of  the  bedclothes  in  her  room  upstairs 
that  she  had  not  been  in  bed,  but  there  was  a  mark 
as  if  someone  had  been  lying  upon  the  bed.  A 
butter-boat,  which  had  been  full  of  dripping,  and  a 
pint  bottle,  which  had  been  nearly  full  of  lamp-oil, 
and  left  near  the  fire  overnight,  were  both  empty,  and 
there  were  spots  of  grease  and  oil  on  the  pillow- 
case, sheets,  and  sofa.  A  stocking  had  been  hung 
up  to  cover  a  crevice  in  the  window-shutter,  through 
which  any  person  outside  might  have  seen  into  the 
kitchen.  The  door-post  of  the  kitchen  leading  into 
the  yard  was  much  burnt  about  three  feet  high  from 
the  ground  ;  and  there  was  a  mark  of  burning  on 
the  door-post  of  the  brewhouse.     The  surface  of  the 


SCIENTIFIC    TESTIMONY.  151 

deceased  woman's  body  was  completely  charred,  the 
tongue  was  livid  and  swollen,  and  one  of  the  toes  was 
much  bruised,  as  if  it  had  been  trodden  on.  There 
was  a  small  blister  on  the  inner  side  of  the  right  leg, 
far  below  where  the  great  burning  commenced, 
which  contained  straw-coloured  serum,  but  there 
was  no  other  blister  on  any  part  of  the  body,  nor 
any  marks  of  redness  around  the  blister,  or  at  the 
parts  where  the  injured  and  uninjured  tissues  joined. 
The  nose,  which  had  been  a  very  prominent  organ 
during  life,  was  flattened  down  so  as  not  to  rise  to 
more  than  the  eighth  of  an  inch  above  the  level  of  the 
face,  and  as  it  never  recovered  its  original  appear- 
ance, it  was  stated  that  it  must  have  been  so  flattened 
for  some  time  before  death.  The  lungs  and  brain 
were  much  congested,  and  a  quantity  of  black  blood 
was  found  in  the  riorht  auricle  of  the  heart. 

From  these  facts  the  medical  witnesses  examined 
in  support  of  the  prosecution  concluded,  that  the 
deceased  had  been  first  suffocated  by  pressing  some- 
thing over  her  mouth  and  nostrils  so  forcibly  as  to 
break  and  flatten  the  nose  in  the  way  described  ; 
but  they  had  made  no  examination  of  the  larynx 
and  trachea,  and  other  parts  of  the  body.  A 
physician  who  had  heard  the  evidence  but  not  seen 
the  deceased,  gave  his  opinion  that  the  appear- 
ances described  by  the  other  witnesses  were  signs 
of  death  by  suffocation  ;  that  the  absence  of  vesica- 
tion, and  of  the  line  of  redness  were  certain  signs 
that  the  body  had  been  burnt  after  death ;  but 
he  added  that,  as  there  were  no  marks  of  external 
injury,  an  examination  should  have  been  made  of 
the  parts  of  the   body  above  mentioned,   in  order 


152  INCULPATORY    MORAL    INDICATIONS. 

to  arrive  at  a  satisfactory  conclusion.  Another 
medical  witness  thouLilu  it  possible  that  suffocation 
might  have  been  produced  by  the  flames  preventing 
the  access  of  air  to  the  lungs,  while  others  again 
thought  it  impossible  that  such  could  have  been  the 
case,  as  no  screams  had  been  heard  in  the  night, 
and  they  were  also  of  opinion  that  if  alive  the 
deceased  must  have  been  in  such  intense  agony  that 
she  could  not,  even  if  she  had  been  strong  enough 
to  walk  from  the  kitchen  to  the  brewhouse,  have 
refrained  from  screamincj.  One  of  these  witnesses 
stated  that  he  did  not  think  it  possible  that  the 
deceased,  if  alive,  could  have  fallen  in  the  position 
in  which  she  was  found,  as  her  first  impulse  would 
have  been  to  stretch  out  her  arms  to  prevent  a  fall  ; 
but,  on  the  other  hand,  it  was  urged  that  it  was  not 
possible  to  judge  of  the  acts  of  a  person  in  the  last 
agonies  of  death  by  the  conduct  of  one  in  full  life. 
Under  the  will  of  her  grandfather  the  prisoner  was 
entitled  on  the  death  of  her  mother  to  the  sum  of 
^200;  and  to  the  interest  of  the  sum  of  ^300  for 
her  life.  She  had  frequently  cruelly  beaten  the  old 
woman,  threatened  to  shorten  her  days,  bitterly 
reproaching  her  for  keeping  her  out  of  her  property 
by  living  so  long,  and  declared  that  she  should  never 
be  happy  so  long  as  she  was  above-ground,  and  she 
had  once  attempted  to  choke  her  by  forcing  a  hand- 
kerchief down  her  throat,  but  was  prevented  from 
doing  so  by  the  other  servant.  The  magistrates 
had  been  frequently  appealed  to,  but  they  could 
only  remonstrate,  as  the  old  woman  would  not 
appear  against  her  daughter. 

The  case  set  up  on  behalf  of  the  prisoner  was, 


SCIENTIFIC    TESTIMONY.  1 53 

that  she  was  in  bed  and,  perceiving  a  smell  of 
fire,  came  downstairs,  and  finding  the  sofa  on  fire, 
fetched  water  and  extinguished  it,  and  that  she 
knew  nothing  of  her  mother's  death  until  she  heard 
it  from  others.  It  appeared  that  the  old  woman 
was  generally  very  chilly,  and  in  the  habit  of  getting 
near  the  fire  ;  that  on  two  former  occasions  she  had 
burned  portions  of  her  dress  ;  that  on  another  she 
had  burned  the  corner  of  the  sofa-cushion  ;  that 
she  used  to  smoke  in  bed,  and  light  her  pipe 
with  lucifer  matches,  which  she  carried  in  a  basket  ; 
and  that  on  the  night  in  question  she  had  brought 
her  pipe,  which  was  found  on  the  following  morning 
in  her  basket.  It  was  urged  as  the  probable  explana- 
tion of  the  position  in  which  the  body  was  found, 
that,  finding  herself  on  fire,  she  must  have  pro- 
ceeded to  the  brewhouse,  where  she  knew  there 
was  water,  and  leaned  in  her  way  there  against 
the  doorpost,  and  that,  feeling  cold  in  the  night, 
she  had  wrapped  the  sheets  around  her,  and  did  not 
throw  them  off  until  she  reached  the  yard.  The 
prisoner,  though  accustomed  to  sleep  upstairs,  was 
in  the  habit  of  undressing  in  the  kitchen,  which  was 
stated  to  be  the  reason  why  the  stocking  had  been 
so  placed  as  to  prevent  any  person  from  seeing 
into  the   kitchen. 

Mr.  Justice  Patteson,  in  his  charge  to  the  jury, 
characterized  the  evidence  of  the  medical  practi- 
tioners who  had  examined  the  body  as  extremely 
unsatisfactory  in  consequence  of  the  incompleteness 
of  their  examination  ;  the  opinion  of  the  physician 
who  had  not  seen  the  body  was  also,  he  said,  very 
unsatisfactory  as  substituting  him  for  the  jury  ;  that 


154  INCULPATORY    MORAL    INDICATIONS. 

he  had  only  expressed  his  opinion  as  founded  upon 
the  facts  stated  by  the  other  witnesses  ;  that  if  he 
had  seen  the  body  himself,  his  views  might  have  been 
materially  different ;  that  the  other  witnesses  might 
have  omitted  to  mention  particulars  w^hich  he  might 
deem  of  the  greatest  importance,  but  which  they 
considered  as  of  no  significance ;  that  therefore 
opinions  expressed  on  such  partial  statements  ought 
to  be  received  with  the  greatest  reluctance  and 
suspicion  ;  that  he  had  always  had  a  strong  opinion 
against  such  evidence,  as  tending  to  encroach  upon 
the  proper  duty  of  juries  ;  and  he  recommended 
them  to  exercise  their  own  judgment  upon  the 
other  evidence  in  the  case,  without  yielding  it 
implicitly  to  the  authority  of  this  witness.  The 
jury  acquitted  the  prisoner ;  and  indeed  it  would 
have  been  contrary  to  all  principle  to  do  otherwise, 
in  the  midst  of  so  much  uncertainty  as  to  the  corpus 
delicti  [p). 

{/>)  Reg.  V.  Newton,  Shrewsbury  Spring  Assizes,  1850.  Two 
former  juries,  at  the  Assizts  in  the  preceding  year,  had  been  unable  to 
agree,  and  had  been  discharged — a  circumstance  unparalleled,  it  is 
believed,  in  English  jurisprudence. 


AMERICAN    NOTES. 

[Note  to  Chapter  III.] 

Motive  —  In   General. 

"  When  there  is  a  question  whether  any  act  was  done  by  any 
person,  the  following  facts  are  deemed  to  be  relevant ;  that  is  to 
say  —  any  fact  which  supplies  a  inotiv^e  for  such  an  act,  or  which 
constitutes  preparation  for  it ;  any  subsequent  conduct  of  such 
person  apparently  influenced  by  the  doing  of  the  act,  and  any  act 
done  in  consequence  of  it  by  or  by  the  authority  of  that  person." 
Stephen's  Dig.  Evid.  Art.  7. 

Motive  may  be  shown  (<?.  g.,  by  proof  of  criminal  relations 
between  the  victim  and  the  wife  of  the  accused).  Martin  v. 
State,  9  Circ.  Dec.  621,  17  Ohio  Circ.  Ct.  406. 

Motive  cannot  generally  be  shown  directly.  It  is  to  be  inferred 
from  facts  proved.     John  v.  Bridgman,  27  Ohio  St.  43. 

It  may  however  be  testified  to  directly  by  the  person  who  did 
the  act.  Coal  Co.  v.  Davenport,  37  Ohio  St.  194;  Mitchell  z/. 
Ryan,  3  Ohio  St.  377,  385. 

To  show  a  person's  motives,  his  own  prior  declarations  are 
admissible,  there  being  at  the  time  they  were  made  no  object 
apparent  in  falsifying.     McCracken  v.  West,  17  Ohio,  16. 

Facts  supplying  a  motive  may  be  shown  in  connection  with 
other  evidence.  State  v.  Palmer,  65  N.  H.  216;  Dodge  v. 
Carroll,  59  N.  H.  237  ;  State  v.  Watkins,  9  Conn.  52,  54;  Com. 
V.  McCarthy,  119  Mass.  354;  Com.  v.  Bradford,  126  Mass.  42; 
Com.  V.  Abbott,  130  Mass.  472  ;  Com.  v.  Choate,  105  Mass.  451  ; 
Com.  V.  Hudson,  97  Mass.  565  ;  Com.  v.  Vaughan,  9  Cush. 
(Mass.)  594;  Scott  V.  People,  141  111.  195;  Benson  v.  State,  119 
Ind.  488;  Tucker  v.  Tucker,  74  Miss.  93,  32  L.  R.  A.  623; 
State  V.  Glahn,  97  Mo.  679;  Moore  v.  U.  S.,  150  U.  S.  57; 
Alexander  v.  U.  S.,  138  U.  S.  353. 


154^  AMERICAN   NOTES. 

That  the  victim  had  been  pressing  the  accused  for  payment  of  a 
debt  is  relevant,  as  showing  motive,  in  a  trial  for  murder.  Com.  ?-. 
Webster,  5  Ciish.  (Mass.)  295. 

The  fact  of  excessive  insurance  may  be  shown  at  the  trial  of 
the  owner  of  a  house,  who  is  charged  with  unlawfully  burning  it, 
as  it  tends  to  supply  a  motive.  Com.  v.  McCarthy,  119  Mass. 
354;  State  V.  Cohn,  9  Nev.  179. 

Evidence  of  motive  must  not  be  too  remote.  Com.  v.  Abbott, 
130  Mass.  472. 

Defendant's  motive  for  shooting  deceased  may  be  shown  to 
have  arisen  from  a  woman's  remark  that  he  ouglit  to  whip  the 
deceased.     People  v.  Gallagher,  78  N.  Y.  Supp.  5. 

The  admission  by  defendant  that  one  adequate  motive  exists 
does  not  prevent  proof  of  another  by  the  State.  Com.  v.  Spink, 
137  Pa.  St.  255. 

In  Butler  v.  State  (Ark.),  63  S.  W.  46,  a  father's  motive  for 
murdering  his  daughter  was  shown  to  be  that  he  feared  she  would 
join  the  Mormon  church  as  her  mother  had  done. 

Motive  of  Third  Persoti  to  Prociu'c  Muj-der. 

The  motive  for  homicide  may  be  shown  to  be  the  hatred  of  a 
third  person  for  the  deceased,  and  that  the  defendant  was  procured 
by  such  third  person  to  do  the  act.     Story  v.  State,  68  Miss.  609. 

Probative   Value  of  Motive. 

The  value  of  a  motive  to  do  an  act,  as  a  circumstance  from 
which  to  infer  guilt,  is  much  less  where  it  is  one  which  would  be 
likely  to  appeal  to  a  large  number  of  persons.  The  fact  that  the 
defendant,  charged  with  larceny,  desired  to  become  rich,  is  of 
little  weight  to  prove  his  guilt.  Millions  have  the  same  desire.  The 
same  principle  applies  in  trials  for  rape  and  similar  cases.  Com. 
V.  Hudson,  97  Mass.  565. 

Motive  not  Admissible  jintil  Defendant  is  Shown  to  Have 
Known  Fact. 

The  fact  that  the  deceased  was  prosecuting  the  defendant  for 
blackmail  cannot  be  proved  as  a  motive  for  killing  the  deceased, 
unless  it  is  shown  that  the  defendant  knew  of  such  prosecution. 
Stokes  v.  People,  53  N.  Y.  164,  13  Am.  Rep.  492. 


AMERICAN   NOTES. 


154^ 


The  circumstance  which  is  alleged  to  have  been  the  cause  of  the 
defendant's  desire  to  commit  the  crime  charged  must  be  shown  to 
have  been  known  by  him,  otherwise  it  could  not  have  been  his 
motive.     State  v.  Shelton,  64  Iowa,  2)ZZ  j  Son  v.  Terr.,  5  Okl.  526. 

Lapse  0/  Time  as  Affecting  Motives. 

The  commission  of  other  crimes,  and  the  fear  of  their  discovery 
by  the  deceased,  may  be  proved  as  a  motive  to  murder.  "  Nor 
can  we  sanction  the  views  of  the  learned  counsel  that  these  col- 
lateral crimes  were  too  remote  in  time  to  furnish  any  motive  for 
the  conmiission  of  the  crime  here  charged.  Motive  may  or  may 
not  be  affected  by  the  lapse  of  time.  Ordinarily,  a  man  who  had 
committed  a  murder  twenty  years  in  the  past  would  be  just  as 
much  concerned  to  prevent  exposure  and  punishment  for  that 
crime  as  though  it  were  but  one  year  in  the  past.  And  in  this 
case,  if  the  discovery  by  Mrs.  Kent,  at  the  time  of  her  death,  of 
these  dark  and  criminal  spots  in  her  husband's  life,  would  have 
been  just  as  galling  and  humiliating  to  him  as  if  discovered  the 
first  year  of  their  married  life,  then  his  motive  to  prevent  such 
discovery  would  be  just  as  strong  at  the  former  time  as  at  the 
latter."     State  v.  Kent,  5  N.  D.  516  (wife  murder). 

JVeeessitv  of  Proving  Motive. 

"  Appellant  further  urges  that  the  evidence  fails  to  disclose  any 
motive  for  the  crime  ;  that  proof  of  motive  is  essential  to  support 
conviction,  and  that  therefore  the  judgment  must  be  reversed.  If 
by  this  is  meant  that  proof  of  a  particular  motive  must  be  as  clear 
and  cogent  as  proof  of  the  crime,  the  proposition  finds  no  support 
in  either  reason  or  authority.  To  the  act  of  every  rational  human 
being  pre-exists  a  motive.  In  every  criminal  case,  proof  of  the 
moving  cause  is  permissible,  and  oftentimes  is  valuable  ;  but  it  is 
never  essential.  Where  the  perpetration  of  a  crime  has  been 
brought  home  to  the  defendant,  the  motive  for  its  commission  be- 
comes unimportant.  Evidence  of  motive  is  sometimes  of  assistance 
in  removing  doubt,  and  completing  proof  which  might  otherwise  be 
unsatisfactory,  and  that  motive  may  either  be  shown  by  positive  evi- 
dence, or  gleaned  from  the  facts  and  surroundings  of  the  act.  The 
motive  then  becomes  a  circumstance,  but  nothing  more  than  a  cir- 
cumstance, to  be  considered  by  the  jury,  and  its  absence  is  equally 


154^  AMERICAN   NOTES. 

a  circumstance  in  favor  of  the  accused,  to  be  given  such  weight 
as  it  deems  proper.  But  proof  of  motive  is  never  indispensable 
to  a  conviction."     People  7^  Durrant,  ii6  Cal.  179,  207. 

Proof  of  a  motive  is  always  admissible,  but  may  not  be  necessary 
to  establish  the  guilt  of  the  accused.  Prentice,  J.,  in  State  v. 
Rathbun,  74  Conn.  524,  says:  "The  State  was  under  no  obliga- 
tion to  show  a  motive  for  the  commission  by  the  accused  of  the 
crime  charged,  much  less  a  sufficient  or  adequate  one.  While  it 
is  a  recognized  rule  of  human  conduct  that  crime  is  the  response 
of  the  evil  mind  to  some  temptation,  and  that  men  of  sound  mind 
are  rarely,  if  ever,  prompted  to  commit  crime  without  some  impel- 
ling motive,  it  does  not  follow,  and  it  is  not  the  law,  that  the 
prosecution,  to  justify  a  conviction  in  a  given  case,  must  be  so 
successful  in  fathoming  the  mysteries  of  the  human  mind  and  in 
revealing  the  possibly  hidden  secrets  influencing  it  as  to  develop 
and  disclose  to  the  jury  a  motive  sufficient  and  adequate  for  the 
commission  of  the  offence.  .  .  .  The  other  evidence  may  be  such 
as  to  justify  a  conviction  without  any  motive  being  shown.  It  may 
be  so  weak  that,  without  a  disclosed  motive,  the  guilt  of  the 
accused  would  be  clouded  by  a  reasonable  doubt." 

Motive  need  not  be  proved  in  order  to  sustain  a  conviction  for 
murder.     People  v.  Owens,  132  Cal.  469. 

Failure  to  Prove  Motive. 

The  fact  that  the  State  has  failed  to  prove  a  motive  should  not 
be  given  weight  by  the  jury.     Brunson  v.  State  (Ala.),  27  So.  410. 

The  State  has  no  need  to  prove  a  motive  where  the  evidence  of 
defendant's  guilt  is  conclusive  ^vithout  it.  People  v.  Minisci,  12 
N.  Y.  St.  R.  719  ;  Thurman  v.  State,  32  Neb.  224. 

Proof  of  a  motive  is  never  indispensable.  People  v.  Robinson 
(N.  Y.),  I  Parker  Cr.  R.  649. 

Absence  of  Motive. 
The  absence  of  a  motive  raises  no  presumption  of  innocence, 
but  is  merely  one  circumstance  to  be  weighed  by  the  jury.     Salm 
V.  State,  89  Ala.  56. 

Desire  for   Wealth. 

The  motive  for  committing  a  larceny  is  usually  a  desire  for 
wealth  quickly  and  easily  obtained  ;  so  also  is  it  in  burglary  and 
robbery,  and  often  in  arson,  homicide,  and  other  crimes. 


AMERICAN  NOTES.  154^ 

Financial  Necessity  of  the  Accused. 

The  state  of  the  defendant's  bank  account  and  his  need  of 
money  may  be  shown  on  his  trial  for  kilhng  his  mother.  Com.  v. 
Twitchell,  i  Brevvst.  (Pa.)  551. 

On  question  of  forgery  of  a  bill,  evidence  that  at  about  the  time 
the  bill  is  dated  the  signer  tried  to  borrow  money,  is  relevant. 
Stevenson  v.  Steward,   1 1   Pa.   307. 

The  defendant  accused  of  setting  fire  to  a  building  may  be  shown 
to  have  insured  the  building  antl  to  have  been  insolvent.  People 
V.  Fitzgerald,  46  N.  Y.  Supp.  1020. 

Where  the  State  alleged  that  the  deceased  was  killed  to  prevent 
the  exposure  of  the  defendants  as  guilty  of  larceny  with  which  he 
had  charged  the  deceased,  it  was  allowed  to  be  shown  that  the  de- 
fendant had  been  short  of  money.     State  v.  Miller,  156  Mo.  76. 

To  Secure  Life  Insurance. 

Evidence  to  show  that  motive  for  murder  was  to  secure  life  in- 
surance held  admissible.     Com.  "'.  Clemmer,  190  Pa.  202. 

It  may  be  shown  that  defendant  had  a  plan  to  secure  insur- 
ance money  payable  on  the  death  of  A  to  his  wife,  by  first  killing 
the  wife,  then  inducing  A  to  make  the  policies  payable  to  the  de- 
fendant, and  then  killing  A.  Com.  v.  Robinson,  146  Mass.  571. 
And  see  Shaffner  v.  Com.,  72  Pa.  60,  13  Am.  Rep.  649. 

The  deceased  may  be  shown  to  have  been  insured  in  favor  of 
the  defendant.     State  v.  Rainsbarger,  74  Iowa,  196. 

It  may  be  shown  that  four  persons  had  a  scheme  whereby  two 
were  to  procure  insurance  on  the  life  of  another  and  the  other  two 
were  then  to  kill  that  other.     Brandt  v.  Com.,  94  Pa.  290. 

Motives  for  Arson. 

Anger  at  his  wife  and  her  intention  of  getting  a  divorce  as  a 
motive  for  burning  the  house.     People  v.  Hiltal,  131  Cal.  577. 

The  securing  of  insurance  money  may  be  shown  to  have  been 
the  object  for  which  the  accused  burned  certain  buildings.  Knights 
V.  State  (Neb.),  78  N.  W.  508. 

Ill-will  toward  an  agent  of  the  owner  of  property  is  not  admis- 
sible as  a  motive  for  burning  the  property.  State  v.  Battle,  126 
N.  C.  1036. 


154/  AMERICAN  NOTES. 

Robbery  and  Jlotnicide. 

Where  tVic  alleged  motive  for  a  homicide  is  robbery,  it  may  be 
shown  that  the  deceased  had  money  and  that  the  defendant  knew 
it,  or  that  he  had  proi)osed  to  rob  the  deceased,  iiyers  v.  State,  1 05 
Ala.  31  ;  Stafford  -■.  State,  55  Ga.  591  ;  State  v.  Jackson,  95  Mo.  623  ; 
Kennedy  v.  People,  39  N.  Y.  245  ;   Howser  v.  Com.,  51  Pa.  332. 

Also  the  deceased  may  be  shown  to  have  had  money,  when  cir- 
cumstances are  proved  making  it  probable  that  the  defendant  knew 
the  fact.     Marable  v.  State,  89  Ga.  425. 

In  addition  it  maybe  shown  that  the  defendant  had  been  in  need 
of  money  and  liad  said  so  (People  v.  \\'olf,  95  Mich.  625),  and 
that  the  defendant  paid  certain  debts  about  the  time  of  the  homi- 
cide, or  had  an  unusual  sum  of  money  in  his  possession.  Clough 
V.  State,  7  Neb.  320;  State  v.  Wintzingerode,  9  Ore.  153. 

The  fact  that  the  deceased  had  money  may  be  shown  in  con- 
nection with  proof  that  his  purse  was  found  near  where  his  body 
lay.     State  v.  Donnelly,  130  Mo.  642. 

The  defendant  may  be  shown  to  have  known  where  the  deceased 
kept  his  money.     Ettinger  v.  Com.  98  Pa.  338. 

To  prove  motive  in  trial  for  homicide  the  State  may  prove  how 
much  money  deceased  had.     Donnelly  v.  State,  26  N.  J.  L.  610. 

Proof  was  made  that  the  decea.sed's  books  showed  that  he  should 
have  had  $1,200  at  the  time  of  his  death,  while  he  was  later  found 
to  have  only  $400,  that  the  defendant  had  been  hard  up,  and  that 
immediately  after  the  homicide  he  paid  a  number  of  his  creditors. 
State  V.  Rice  (Ida.),  66  Pac.  87. 

The  State  may  show  that  the  deceased  was  generally  reputed  to 
have  money,  and  that  she  distrusted  banks,  and  that  the  defendant 
knew  it,  as  a  motive  for  robbery  and  murder.  Musser  v.  State 
(Ind.),  61  N.  E.  I. 

Where  the  motive  for  the  homicide  was  the  money  which  de- 
ceased was  going  to  draw  from  a  bank,  the  State  may  show  the 
amount  on  deposit  there.     State  v.  Lucey  (Mont.),  61  Pac.  994. 

To  Escape  the  Biirdefi  of  Supporting  Deceased. 

It  may  be  shown  that  defendant  had  by  deed  agreed  to  support 
the  deceased  during  the  remainder  of  his  life.  Davidson  v.  State, 
135  Ind.  254. 


AMERICAN   NOTES.  154^ 

To  Conceal  Defalcations. 

The  defendant,  charged  with  the  destruction  of  certain  books  of 
account  for  the  purpose  of  concealing  his  defalcation,  may  be 
shown  to  have  been  gambling  shortly  before  the  event.  McElhan- 
non  V.  State  (Ga.),  26  S.  E.  501. 

Previous  Relations  dctweefi  Deceased  and  Defendant — In 
General. 

The  previous  relations  existing  between  the  defendant  and  the 
deceased,  unfriendly  feelings,  anger  in  arguments,  concealed  mar- 
riage, illicit  intercourse,  and  the  like,  may  be  proved  as  bearing 
upon  the  motives  tending  to  crime.  State  v.  Seymore,  94  Iowa, 
699  ;  Sillberryz'.  State,  133  Ind.  677  ;  O'Brien  z'.  Com.,  89  Ky.  354  ; 
State  7'.  Stackhouse,  24  Kan.  445  ;  Com.  v.  Costley,  118  Mass.  i  ; 
People  -'.  Lyons,  no  N.  Y.  618  ;  McWeen  v.  Com.,  114  Pa.  300  ; 
Boyle  V.  State,  61  Wis.  440. 

The  deceased  may  be  shown  to  have  had  the  accused  arrested 
on  a  charge  of  bastardy,  and  that  the  accused  had  paid  a  sum  of 
money  to  settle  the  case.      Franklin  v.  Com.,  92  Ky.  612. 

A  quarrel  between  the  defendant  and  the  wife  of  the  deceased 
was  admitted  as  a  motive  for  homicide.  Gravely  v.  State,  45  Neb. 
878. 

To  show  the  motive  of  a  slave  for  mixing  poison  with  the  food 
prepared  by  her  for  her  owner,  her  conduct,  disobedient  acts,  and 
discontent  may  be  proved,  as  also  the  fact  that  the  owner  had 
sexual  intercourse  with  her.     Josephine  v.  State,  39  Miss.  613. 

Revenge. 

Defendant's  motive  for  killing  the  deceased  was  shown  to  be  the 
fact  that  defendant  had  just  served  a  term  in  the  penitentiary  for 
burglary  of  the  deceased's  house.  Powell  v.  State,  13  Tex.  App. 
244. 

It  may  be  shown  that  the  deceased  had  planned  to  help  the 
defendant's  wife  elope  with  another  man,  in  order  to  show  a  motive 
for  homicide.     Cheek  v.  State,  35  Ind.  492. 

In  State  v.  Morris,  84  N.  C.  756,  it  was  shown  that  the  defend- 
ant and  the  deceased  had  been  indicted  for  larceny  and  that  the 
latter  had  turned  State's  evidence. 


154 -^-J  AMERICAN  NOTES. 

To  show  that  the  dcfcmlaiU  had  a  motive  for  the  murder  of  liis 
wife,  it  may  be  proved  that  she  iiad  sued  for  a  divorce.  Com.  v. 
Madan,  102  Mass.  i  ;  Binns  v.  State,  57  Ind.  46. 

Trouble  witli  defendant's  employer  as  motive  for  arson.  Meeks 
V.  State  (Ga.),  30  S.  E.  252. 

Discharge  of  Employee. 

It  may  be  shown  that  the  defendant  had  been  in  the  employ  of 
the  deceased  and  had  been  discharged.  Morrison  v.  State,  84 
Ala.  405. 

Deceased  a    Witness  in  Another  Case. 

To  prove  homicide,  the  deceased  may  be  shown  to  have  been  a 
witness  or  the  prosecutor  against  the  defendant  in  another  case. 
Childs  V.  State,  55  Ala.  25  (prosecution  for  stealing  corn)  ;  Tur- 
ner V.  State.  70  Ga.  765  (indictment  for  another  murder)  ;  Butler 
V.  State,  91  Ga.  161  (prosecution  for  adultery  with  daughter  of 
deceased)  ;  Martin  v.  Com.,  93  Ky.  189  (indictment  for  robbery)  ; 
Gillum  V.  State  62  Miss.  547  (illegal  liquor  selling)  ;  State  v. 
Morris,  84  N.  C.  756  (deceased  was  State's  evidence  in  larceny  case). 

It  may  be  shown  that  the  deceased  was  to  be  a  witness  against 
the  defendant  in  a  suit  for  divorce  on  the  ground  of  adultery. 
Com.  V.  Madan,  102  Mass.  i. 

Neighborhood  Feud. 

The  existence  of  a  neighborhood  feud  may  be  shown,  and  the 
fact  that  the  defendant  and  the  deceased  belonged  to  different 
sides.     State  v.  Helm,  97  Iowa,  378. 

To  show  a  feud  between  the  families  as  a  motive  for  murder, 
the  State  may  show  that  immediately  after  shooting  the  deceased  he 
shot  again  and  wounded  deceased's  mother.  People  v.  Walters, 
98  Cal.  138. 

Previous  quarrels  in  which  the  deceased  killed  a  relative  and  a 
friend  of  the  defendant  may  be  proved  to  show  defendant's  motive 
for  kiUing  deceased.     Kelsoe  v.  State,  47  Ala.  573. 

Jealousy. 

The  defendant  in  homicide  may  be  shown  to  have  been  rejected 
and  the  deceased  to  have  been  accepted  by  the  same  girl  (Hunter 


AMERICAN   NOTES.  I  54/ 

V.  State,  43  Ga.  483  ;  McCue  v.  Com.,  78  Pa.  185  ;  21  Am  Rep.  7), 
or  the  defendant  may  be  shown  to  have  been  jealous  of  the 
deceased  and  to  have  quarrelled  with  a  woman  about  him.  Com. 
V.  McManus,  143  Pa.  64,  14  L.  R.  A.  89. 

Unrequited  Love. 

It  may  be  shown  that  the  defendant  killed  the  deceased  because 
she  refused  to  cohabit  with  him  or  to  marry  him  (Walker  v.  State, 
85  Ala.  7,  7  Am.  St.  Rep.  17  ;  People  v.  Kemmler,  1 19  N.  Y.  580), 
or  because  the  deceased  had  interposed  obstacles  to  the  marriage 
of  the  defendant  with  some  woman.     State  v.  Lentz,  45  Minn.  177. 

It  may  be  shown  that  the  deceased  had  supplanted  the  defend- 
ant in  the  affections  of  a  lewd  woman.  Brown  t.  Com.  (Ky.),  17 
S.  \V.  220. 

In  Renfro  r.  State  (Tex.),  56  S.  W.  1013,  the  motive  was  shown 
to  be  that  the  defendant  had  been  rejected  by  the  daughter  of  the 
deceased,  to  whom  he  had  then  imputed  unchastity  ;  that  defendant 
had  been  sued  for  slander,  in  which  suit  deceased  was  a  witness; 
and  that  defendant  had  threatened  to  kill  the  deceased  for  prose- 
cuting the  suit. 

Dispute  over  Will. 

Where  the  defendant  is  charged  with  the  murder  of  his  brother, 
it  may  be  shown  that  their  father's  will  gave  all  his  property  to  the 
deceased  and  that  the  defendant  had  contested  the  will.  State  v. 
Ingram,  23  Ore.  434. 

Race  Antipathies. 

Where  the  defendant  is  charged  with  killing  a  Mexican,  he  may 
be  shown  to  have  attended  a  meeting  the  object  of  which  was  to 
rid  the  neighborhood  of  cheap  Mexican  labor.  Chalk  v.  State, 
35  Tex.  Cr.   Rep.    116. 

Membership  in   Criminal  Organization. 

To  show  that  the  defendants  committed  the  murder  as  agents  of 
the  "  Mollie  Maguires,"  the  State  may  show  that  such  an  organiza- 
tion existed  with  its  criminal  purposes  and  practices.  Carroll  v. 
Com.,  84  Pa.  St.  107  ;  Hester  v.  Com.,  85  Pa.  St  .139  ;  McManus  v. 
Com.,  91  Pa.  St.  57. 


1547  AMERICAN   NOTES. 

Improper  Relations  with  the    Wife  of  the  Deceased. 

That  illicit  sexual  intercourse  may  be  a  motive  for  homicide, 
and  may  be  proved  in  evidence,  see  Com.  v.  Ferrigan,  44  Pa.  St. 
3S6,  where  it  is  said  :  "  He  is  a  poor  judge  of  human  motives  and 
impulses  who  cannot  see  in  such  a  relation  as  is  proposed  to  be 
proved  here  between  the  deceased's  wife  and  the  prisoner,  that  it 
might  leail  to  the  perpetration  of  the  crime  charged,  or  who  would 
deny  that  it  would  probably  shed  light  on  the  motive." 

Defendant,  charged  with  homicide,  may  be  shown  to  have  had 
improper  relations  with  tiie  wife  of  the  deceased  (Johnson  z'. 
State,  24  Fla.  162  ;  State  v.  Reed,  53  Kan.  767,  42  Am.  St.  Rep. 
322  ;  Templeton  v.  People,  27  Mich,  501  ;  Turner  v.  Com.,  86 
Pa.  St.  54;  Com.  V.  Fry,  198  Pa.  St.  379;  Onidas  v.  State, 
78  Miss.  622  ;  State  v.  Chase,  68  Vt.  405  ;  Weaver  z'.  State  (Tex.), 
65  S.  W.  534),  after  the  murder  as  well  as  before  it.  Miller  v. 
Stale,  68  Miss.  221  ;  Traverse  v.  State,  6r  Wis.  144. 

To  show  motive  for  murder  the  State  may  prove  that  the  de- 
fendant and  the  wife  of  the  deceased  occupied  the  same  room  for 
two  nights  shortly  after  the  murder.  State  v.  Abbotts,  64  N.  J.  L. 
658. 

In  Nicholas  7'.  Com.,  91  Va.  741,  the  defendant  was  shown  to 
have  been  criminally  intimate  with  the  wife  of  the  man  he  was 
alleged  to  have  drowned,  both  before  and  after  the  latter's  death. 

The  defendant  may  be  shown  to  have  married  the  wife  of  the 
deceased  after  the  homicide,  even  though  such  marriage  was  biga- 
mous.    Pierson  v.  People,  79  N.  Y.  424,  35  Am.  Rep.  524. 

The  defendant  may  be  shown  to  have  been  criminally  intimate 
with  the  deceased's  wife  to  show  motive  and  the  degree  of  the 
crime.     State  v.  Reed,  53  Kan.  767,  42  Am.  St.  Rep.  322. 

To  show  defendant's  relation  with  the  wife  of  deceased  the  wife's 
letters  are  admissible  to  show  her  affection  for  defendant  and 
her  lack  of  affection  for  her  husband.  Stokes  v.  State  (Ark.),  71 
S.  W.  248. 

Wife  Afurder —  Various  Motives. 

Where  the  charge  is  wife  murder,  the  defendant  may  be  shown 
to  have  previously  beaten  and  abused  his  wife.  Phillips  v.  State, 
62  Ark.  119  ;  Hall  z'.  State,  31  Tex.  Cr.  Rep.  565  ;  Stone  v.  State, 


AMERICAN   NOTES.  154/^ 

23  Tenn.  27  ;  Thiede  v.  People,  159  U.  S.  510;  Slate  v.  O'Neil, 
51  Kan.  651,  24  L.  R.  A.  555. 

In  Com.  V.  Holmes,  157  Mass.  233,  34  Am.  .St.  Rep.  270,  where 
the  defendant  was  charged  with  wife  murder,  evidence  was  ad- 
mitted to  show  that  he  had  beaten  and  threatened  her  during 
almost  their  whole  married  life. 

The  defendant  charged  with  the  murder  of  his  wife  may  be  shown 
♦o  have  been  married  before,  and  that  the  former  wife  was  living 
and  not  divorced.     People  v.  Harris,  136  N.  Y.  423. 

Where  the  defendant  is  charged  with  wife  murder  it  may  be 
shown  that  she  had  made  a  will  leaving  her  property  to  the  de- 
fendant.    People  V.  Buchanan,  145  N.  Y.  i. 

The  State  may  show  that  the  deceased  had  applied  for  a  divorce 
from  the  defendant,  but  it  is  not  proper  to  read  the  divorce  petition 
to  the  jury.     Pinckord  v.  State,  13  Tex.  App.  468. 

Where  it  is  alleged  the  defendant  killed  his  wife  because  she 
refused  to  live  with  him,  his  motive  for  desiring  her  to  live  with 
him  may  be  shown  to  be  the  fact  that  she  had  money  and  he  had 
none.     Sayres  v.  Com.,  88  Pa.  St.  291. 

The  defendant  charged  with  wife  murder  may  be  shown  to  have 
been  disappointed  in  the  will  of  his  wife's  father.  Hendrickson  v. 
People,  10  N.  Y.  13,  61  Am.  Dec.  721. 

The  wife  may  be  shown  to  have  refused  to  live  with  her  husband 
because  of  violence  or  for  other  reasons.     State  v.  Bradley,  67  Vt. 

465- 

It  may  be  shown  that  the  wife  had  previously  had  her  husband 
arrested  for  assaults  or  for  non-support.  People  v.  Otto,  4  N.  Y. 
Cr.  Rep.  149,  5  N.  E.  788  ;  McCann  v.  People,  3  Parker  Cr. 
Rep.  (N.  Y.)  272. 

Concealmettt  of  Marriage. 

To  show  a  motive  for  the  defendant's  killing  his  wife,  the  State 
may  show  that  he  had  previously  procured  abortions  on  her  for 
keeping  the  marriage  a  secret.     People  v.  Harris,    136  N.  Y.  423. 

In  O'Brien  v.  Com.,  89  Ky.  354,  where  the  supposed  motive 
for  the  murder  of  a  wife  to  whom  the  prisoner  had  been  secretly 
married  was  the  fact  that  the  announcement  of  such  marriage, 
which  could  be  delayed  but  a  short  time  longer,  would  interrupt 
his  relations  with  a  prostitute  and  prevent  marriage  with  another 
woman  living  in  Indiana,  to  whom  he  was  then  under  engagement 


I  54  /  AMERICAN   NOTES. 

of  marriage,  letters  of  the  prisoner  to  the  deceased  and  such  other 
women  were  held  competent.  "  All  of  them  .  .  .  showed  the  ex- 
istence of  a  relation  between  the  accused  and  these  two  women 
which  might  be  broken  off  or  interfered  with  by  his  marriage  to  the 
deceased  becoming  public.  They  exhibited  a  motive  why  he 
should  desire  to  rid  himself  of  his  wife  and  their  unborn  offspring." 

Desire  for  Another   Woman. 

It  may  be  shown  that  the  defendant  desired  to  ma-rry  another 
woman  and  had  said  so  (Marler  v.  State,  67  Ala.  55,  42  Am.  Rep. 
95  ;  O'Brien  v.  Com.,  89  Ky.  354),  or  that  he  loved  another  woman 
and  no  longer  cared  for  his  wife.  Duncan  v.  State,  99  Ala.  31  ; 
Pettit  V.  State,  135  Ind.  393;  People  v.  Wilson,   109  N.  Y.  345. 

Where  the  defendant  was  charged  with  wrecking  a  train  upon 
which  his  wife  was  travelling,  his  proposals  to  another  woman  were 
allowed  to  be  proved.     Shaw  v.  State,  102  Ga.  660. 

Infatuation  with  another  woman  may  be  shown  as  a  motive  for 
wife  murder.     Caddell  v.  State  (Ala.),  30  So.  76. 

Adulterous  Relations  with    Other   Women. 

Adulterous  relations  of  a  husband  charged  with  the  murder  of 
his  wife  may  be  proved.  "  Love  extinguished  by  adultery  gives  way 
to  hatred,  and  a  desire  to  be  free  from  the  burden  of  a  wife  who 
is  no  longer  the  object  of  regard."  State  v.  Watkins,  9  Conn. 
47;  so  also  Hinshaw  j-\  State,  147  Ind.  334;  St.  Louis  v.  State, 
8  Neb.  405  ;  State  v.  Duestrow,  137  Mo.  44;  Templeton  v.  People, 
27  Mich.  502;  People  v.  Harris,  136  N.  Y.  423;  Johnson  v. 
State,  94  Ala.  35. 

The  defendant  charged  with  poisoning  his  wife  may  be  shown  to 
have  been  improperly  intimate  with  another  woman  prior  to  his  wife's 
death  and  on  the  day  of  her  burial.     State  v.  Hinkle,  6  Iowa,  380. 

Defendant's  motive  for  procuring  another  to  murder  his  wife 
was  shown  that  he  was  in  love  with  another  woman  with  whom  he 
had  had  intercourse,  and  that  he  and  his  wife  had  frequent  alter- 
cations over  the  other  woman.     Givens  v.  State,  103  Tenn.  648. 

And  so  where  a  wife  is  charged  with  being  accessory  to  the 
murder  of  her  husband,  her  letters  may  be  introduced  to  show  her 
improper  relations  with  the  man  who  did  the  killing  (Stricklin  v. 
Com.,  83  Ky.  566);  or  where  she  is  herself  charged  with  the  mur- 


AMERICAN   NOTES.  I54  7« 

der,  her  improper  relations  with  a  man  not  her  husband  may  be 
proved.  People  v.  Nileman,  8  N.  Y.  St.  Rej).  300  ;  Mack  v.  State, 
48  Wis.  271. 

Other  Crimes  to  Show  Motive. 

To  show  that  the  motive  for  the  murder  of  a  child  by  her  father 
was  his  desire  to  marry  a  second  wife,  it  may  be  shown  that  he 
killed  his  wife  and  another  child  also.  The  Court  says  :  "  The 
theory  of  the  prosecution  in  this  case,  as  developed  on  the  trial, 
was,  that  the  defendant  conceived  that  the  lives  of  Emma  Hawes, 
his  wife,  and  of  their  children,  May  and  Irene,  stood  between  him 
and  the  consummation  of  a  second  marriage  ;  and  hence  that  the 
motive  which  prompted  the  murder  of  each  of  them  was  the  same. 
There  was  evidence  tending  strongly  to  support  this  theory,  and  to 
show  that  the  death  of  each  of  the  victims  was  but  a  part  of  a 
system  in  which  the  lives  of  all  were  involved,  and  in  the  working  out 
of  which  to  the  accomplishment  of  defendant's  ulterior  purpose, 
the  life  of  each  was,  in  substantially  the  same  manner,  ruthlessly 
sacrificed.  Under  these  circumstances,  all  evidence  going  in  any 
way  to  connect  the  defendant  with  the  murder  of  his  wife,  or  of 
his  daughter  Irene,  was  relevant  to  the  issues  involved  on  his  trial 
for  the  murder  of  May,  and  was  properly  admitted."  Hawes  v. 
State,  88  Ala.  37,  67. 

Proof  of  a  motive  is  admissible,  though  it  makes  necessary  the 
proving  of  other  crimes.  Terr.  v.  McGinnis  (New  Mex.),  61 
Pac.  208. 

But  it  is  not  proper  to  prove  that  the  defendant  committed  the 
crime  in  question  by  evidence  that  he  had  a  different  motive  to 
commit  another  crime. 

In  Shaffner  v.  Com.,  72  Pa.  St.  60,  the  Court  says  :  ''To  make 
one  criminal  act  evidence  of  another,  a  connection  between  them 
must  have  existed  in  the  mind  of  the  actor,  linking  them  together 
for  some  purpose  he  intended  to  accomplish  ;  or  it  must  be  neces- 
sary to  identify  the  person  of  the  actor  by  a  connection  which 
shows  that  he  who  committed  the  one  must  have  done  the  other." 

To  show  that  the  defendant  poisoned  a  certain  horse  he  may  be 
shown  to  have  poisoned  others  in  pursuance  to  a  scheme  to  induce 
people  to  employ  him  as  a  veterinary.  Brown  v.  State,  26  Ohio 
St.  176. 

The  defendant,  on  trial  for  poisoning  his  wife,  may  be  shown  to 


154'^  AMERICAN   NOTES. 

hnve  first  poisoned  his  mother-in-law,  from  whom  the  wife  would 
inherit  property.  Goersen  v.  Com.,  99  Pa.  388,  106  Pa.  St.  477, 
51  Am.  Rep.  534. 

Concealment  of  Another   Crime. 

The  State  may  show  that  the  defendant  had  committed  another 
murder  and  knew  he  was  suspected  of  it  by  the  deceased,  and 
this,  even  if  there  is  proof  of  other  motives.  Moore  v.  U.  S.,  150 
U.  S.  57;  Dunn  v.  State,  2  Ark.  229,  35  Am.  Dec.  54. 

A  murder  may  be  shown  to  have  been  committed  to  conceal 
stolen  goods  obtained  by  burglary.  McConkey  v.  Com.,  loi  Pa. 
416. 

The  defendant  may  be  shown  to  have  known  that  the  deceased 
suspected  him  of  stealing  wood  and  was  watching  him.  State  v. 
Fontenot,  48  La.  Ann.  305. 

It  may  be  shown  that  the  deceased  caught  the  defendant,  charged 
with  murder,  in  the  act  of  committing  burglary  and  arson.  Black- 
well  V.  State,  29  Tex.  A  pp.  194. 

It  may  be  shown  that  the  defendant  had  employed  his  slave, 
with  whose  murder  he  was  charged,  to  murder  the  wife  of  the 
defendant.     State  v.  Posey,  4  Strob.  (S.  C.)  142. 

Circumstances  indicating  a  rape  may  be  proved  to  show  a 
motive  for  murder.     Robinson  v.  State,  114  Ga.  56. 

Evidence  received  to  show  that  defendant  had  been  guilty  of 
robbery,  to  show  motive  for  killing  the  deceased.  Terr.  v.  McGinnis 
(New  Mex.),  61  Pac.  208;  State  v.  Morgan  (Utah),  6r  Pac.  527. 

Concealment  of  Illicit  Intercourse. 

It  is  competent  to  show  the  pregnancy  of  the  deceased  by  the 
defendant.  Sage  v.  State,  127  Ind.  15;  State  v.  Klein,  54  Iowa, 
183. 

Improper  sexual  relations  between  the  defendant  and  the  de- 
ceased are  admissible  in  evidence.  People  v.  Buchanan,  145 
N.  Y.  I  ;  Jackson  v.  Com.,  100  Ky.  239  ;  Simons  v.  People,  150 
111.  66. 

Crime  to  Escape  Arrest. 

It  may  be  shown  that  the  defendant  had  committed  a  previous 
felony  and  killed  the  deceased  (an  officer)  to  escape  arrest. 
People  V.  Pool,  27  Cal.  572. 


AMERICAN   NOTES.  154^ 

Where  the  defendant,  a  slave,  was  charged  with  the  murder  of 
another  slave,  it  was  shown  that  the  defendant  was  a  runaway  and 
was  concealed  in  a  place  known  to  the  deceased ;  that  the  latter 
was  suspected  by  the  defendant  of  an  intention  to  disclose  the 
hiding-place,  and  was  threatened  with  death  by  the  defendant. 
Jim  V.  State,  24  Tenn.  145. 

Defendant's  motive  for  killing  an  officer  may  be  shown  to  have 
been  fear  of  arrest  becau§e  of  an  indictment  in  another  State. 
Williams  v.  Com.,  85  Va.  607. 

The  State  may  show  that  a  robbery  had  been  committed,  and 
that  the  defendants  had  been  arrested  for  it,  to  show  their  motive 
for  killing  the  officer  in  charge  of  them.  Miller  v.  State  (Ala.), 
30  So.  379. 

Murder  of  a  peace  officer ;  it  was  shown  that  the  motive  to 
resist  was  the  fact  that  the  defendant  had  committed  a  robbery  for 
which  he  was  about  to  be  arrested.  State  v.  Morgan,  22  Utah, 
162. 

In  the  case  of  People  v.  Rogers,  71  Cal.  565,  the  defendant  was 
convicted  of  a  murder  while  committing  a  burglary  in  the  house  of 
the  deceased.  As  a  part  of  the  evidence  it  was  allowed  to  be 
shown  that  the  defendant  had  committed  two  prior  burglaries,  at 
one  of  which  he  had  stolen  the  knife  and  chisel  with  which  he 
gained  entrance  to  the  house  of  the  deceased,  and  at  the  other  of 
which  he  stole  the  pistol  with  which  he  committed  the  murder. 

There  was  such  a  direct  connection  among  these  various  crimes 
that  they  served  to  identify  the  prisoner  as  guilty  of  the  crime 
charged. 

See  also  People  v.  Molineux,  16S  N.  Y.  264,  and  extended  note 
after  Chapter  VII,  Poisoning  Cases. 

The  Case  of  the  Chicago  Anarchists. 

A  case  in  which  very  interesting  and  very  beneficial  use  was 
made  of  circumstantial  evidence  was  the  Anarchists'  Case,  reported 
as  '$>\>\t%  et  al  V.  People,  122  111.  i. 

In  the  Chicago  Criminal  Court,  eight  anarchists  were  found 
guilty  of  murder,  seven  of  them  being  condemned  to  death.  The 
seven  were  August  Spies,  Michael  Schwab,  Samuel  Fielden, 
Albert    R.    Parsons,  Adolph    Fischer,   George   Engel,  and    Louis 


154/'  AMERICAN   NOTES. 

Lingg.  Tiie  other,  condemned  to  fifteen  years'  imprisonment, 
was  Oscar  VV.  Necfe. 

On  May  ist,  1886,  many  workmen  in  Chicago  struck  to  obtain 
a  reduction  of  their  working  day  to  eight  hours.  There  was  great 
exciten>ent,  and  many  meetings  and  speeches. 

On  the  4iii  of  May,  such  a  meeting  was  iield  at  the  Haymarket 
on  Randolph  St.,  in  Chicago.  This  meeting  was  addressed  by 
several  of  the  defendants,  and  during  tlie  address  of  Spies  a  charge 
was  made  on  the  crowd  by  1 80  pohcemen.  Bombs  were  thrown 
and  guns  fired  at  the  pohcemen,  and  six  jiolicemen  were  killed 
and  six  wounded.  The  defendants  were  tried  for  the  murder  of 
one  of  these  policemen,  Michael  J.  Degan. 

The  corpus  delicti  was  established  by  undisputed  evidence. 
Degan  was  killed  by  a  bomb  ;  of  that  there  was  no  doubt.  It 
seemed  equally  well  established  that  not  one  of  the  defendants 
threw  the  bomb,  but  they  were  charged  as  accessories. 

It  was  shown  that  they  were  all  members  of  several  anarchistic 
societies,  particularly  one  known  as  the  International  Arbeiter  As- 
sociation, often  called  the  "Internationals"  and  the  "I.  A.  A." 
This  association  was  divided  into  groups,  of  which  there  were 
about  eighty  in  the  United  States.  Certain  members  of  each 
group  were  armed  and  drilled  regularly.  The  most  proficient  of 
these  armed  groups,  including  the  defendants,  were  also  members 
of  a  more  exclusive  organization  known  as  the  "  Lehr  und  Wehr 
Verein  "  Each  member  had  a  Springfield  rifle  and  other  weapons, 
and  each  was  known  by  number  only. 

The  object  of  these  societies  was  the  destruction  of  organized 
society  and  the  right  of  private  property.  The  members  openly 
and  secretly  advocated  the  destruction  of  property,  the  murder  of 
officers  of  the  law  and  of  property  owners,  and  the  general  use  of 
deadly  weapons,  dynamite,  bombs,  and  other  explosives. 

The  grou;)  of  defendants  published  three  incendiary  news- 
papers, —  Tlie  Arbeiter  Zeitnng  in  German,  published  by  Spies, 
Schwab,  Fischer,  and  Neebe;  T/ie  Alarm  in  English,  published 
by  Parsons  and  Fielden  ;  and  a  still  more  inflammable  sheet  called 
T/ie  Anarchist,  published  by  Engel.  These  papers  published  the 
signals  by  which  the  anarchists  were  called  together  at  various 
times,  the  signal  for  the  meeting  of  May  4th  being  "  Ruhe." 
They  constantly  advocated  social  revolution  and  war  upon   the 


AMERICAN   NOTES.  154^ 

police  ami  the  inililia.  Their  articles,  written  by  tlie  defendants, 
contained  hundreds  of  expressions  like  the  following:  "Daggers 
and  revolvers  are  easily  to  be  gotten,  hanil-^renades  are  cheaply 
to  be  produced  ;  explosives  too  can  be  obtained."  "  Working- 
men,  arm  yourselves."  "We  wonder  whether  the  workingmen 
will  at  last  bupply  themselves  with  weapons,  d3namite,  and  prussic 
acid."  '•  If  we  do  not  bestir  ourselves  for  a  bloody  revolution  we 
cannot  leave  anything  to  our  children  but  poverty  and  slavery.  " 
"  One  man  armed  with  a  dynamite  bomb  is  equal  to  one  regi- 
ment of  militia."  "  Dynamite  is  the  emancipator.  "  "  Assassina- 
tion will  remove  the  evil  from  the  face  of  the  earth." 

Articles  were  published  on  "  How  to  use  dynamite  properly,"' 
*' Manufacturing  Bombs,"  "Exercise  in  Arms,"  and  extracts  were 
published  from  the  book  of  Herr  Most  giving  detailed  instructions 
in  the  inanufacture  and  use  of  bombs  and  other  weapons. 

In  many  public  speeches  the  defendants  had  advocated  the 
killing  of  the  police  and  the  militia,  using  the  same  arguments  and 
the  same  language  as  in  their  written  editorials. 

The  date  for  beginning  tlie  "social  revolution"  was  May  1st, 
1 886,  for  the  reason  that  various  labor  unions  were  to  strike  at 
that  time  for  the  eight-hour  day.  These  defendants  did  not  ap- 
prove of  the  eight-hour  agitation,  except  as  a  means  that  they 
could  use  to  bring  about  total  destruction  of  society.  They  ex- 
pected the  discontent  and  want  accompanying  the  strike  to  drive 
many  workmen  to  the  ranks  of  the  Internationals.  The  defend- 
ants urged  all  to  procure  arms  for  the  successful  resistance  of  the 
authorities  during  the  continuance  of  the  strike.  They  even  made 
arrangements  to  purchase  guns  in  large  quantities. 

In  the  meantime  they  had  all  been  experimenting  in  the 
manufacture  and  explosion  of  bombs.  Particularly  the  defendant 
Lingg  nad  been  so  employed. 

It  became  material  to  show  that  the  bomb  with  which  Policeman 
Degan  was  killed  had  been  manufactured  by  Lingg.  To  tiiis 
end  it  was  proved  first  that  the  bomb  was  round.  Several  wit- 
nesses who  saw  it  thrown  so  described  it,  and  moreover,  it  was 
not  of  the  material  of  which  ordinary  gas-pipe  bombs  are  made. 
The  manufacture  of  round  bombs  requires  greater  skill  and 
greater  secrecy. 

Lingg  was  shown  to  have  manufactured  such  round  bombs  in 


154^'  AMERICAN   NOTES. 

large  numbers.  It  was  also  shown  that  a  basketful  of  his  bombs 
had  been  carried  to  the  Haymarket  meeting.  In  the  next  place, 
the  bomb  was  exploded  by  means  of  a  fuse.  The  bombs  that 
IJngg  had  constructed  were  all  made  of  two  semi-globular  shells 
fastened  together,  filled  with  dynamite,  and  fired  by  m^ans  of  a  fuse 
passed  through  a  hole  bored  for  the  purpose  and  attached  to  a 
fulminating  cap. 

Furtlier,  the  pieces  of  the  bomb  taken  from  Degan's  body 
were  of  the  same  chemical  composition  as  the  bombs  made 
by  Lingg.  They  were  composed  of  tin  and  lead,  with  traces 
of  antimony,  iron,  and  zinc.  There  is  no  commercial  substance 
containing  all  these  ingredients.  In  Lingg's  bombs  the  tin 
had  been  added  to  the  lead  to  procure  sufficient  resistance  for 
explosion. 

The  bomb  that  exploded  had  on  it  a  small  iron  nut,  which  was 
extracted  from  the  body  of  a  bystander.  This  indicated  tliat  the 
two  semi-globular  halves  of  the  bomb  had  been  fastened  together 
with  a  bolt.  Practically  all  of  the  bombs  made  by  Lingg,  and 
later  discovered,  were  made  of  the  two  semi-globular  halves,  bolted 
together,  and  this  nut  taken  from  the  body  of  the  bystander 
exactly  fitted  those  bolts.  Lingg  himself  had  been  seen  making 
such  bombs,  with  a  handkerchief  over  his  face  to  prevent  the 
inhalation  of  gas.  He  had  bought  dynamite.  A  poisonous  gas 
exhales  from  dynamite.  The  conclusion  follows  that  he  put  dyna- 
mite in  the  bombs  that  he  was  seen  to  make. 

In  Lingg's  room,  after  the  murder,  were  found  various  articles, 
among  them  the  following :  a  cold-chisel,  a  file,  shells,  loaded 
cartridges,  sheets  of  lead,  bolts,  two  empty  gas-pipe  bombs  and 
two  loaded  with  dynamite,  a  rifle,  a  round  bomb  loaded  with 
dynamite,  a  piece  of  block  tin,  a  piece  of  candlestick  composed 
of  tin,  lead,  antimony,  and  zinc,  fuse  of  various  lengths,  and  ful- 
minating caps.  He  had  every  ingredient  necessary  for  the  making 
of  bombs  like  the  one  that  killed  Degan. 

Differences  in  the  exact  amounts  of  these  ingredients  in  the 
different  bombs  would  be  accounted  for  by  the  fact  that  he  made 
each  semi-globe  separately  with  a  small  ladle  over  the  kitchen 
stove,  casting  each  in  a  small  clay  mould  made  by  himself. 

Lingg's  purpose  in  making  ihe  bombs  is  to  be  found  from  the 
purposes  for  which  the  International  Arbeiier  Association  existed. 


AMERICAN   NOTES.  I545 

These  have  been  before  stated,  and  were  made  apparent  from  the 
publications  and  speeches  of  the  other  defendants. 

'I'here  was  evidence  of  a  distinct  plan  on  the  part  of  the  de- 
fendants to  attack  the  police  of  the  whole  city  on  the  night  in 
question.  Members  of  the  Association  helped  themselves  to 
bombs  brought  by  Lingg  to  the  rendezvous,  and  were  to  make 
separate  attacks  upon  the  police  stations,  gradually  concentrating 
to  fight  in  the  centre  of  the  city.  This  plan  had  to  be  changed 
because  the  police  were  concentrated  near  the  neighborhood  of 
the  Haymarket. 

There  was  a  vast  array  of  evidence  of  the  foregoing  sorts,  and 
the  defendants  were  convicted  under  a  statute  of  Illinois  mak- 
ing accessories  punishable  as  principals.  Tiie  Court  found  that 
Degan's  death  was  directly  brought  about  by  the  conspiracies  and 
plans  of  the  defendants  and  other  "  Internationals."  The  bombs 
were  made  and  obtained  in  pursuance  of  the  plan.  The  meeting 
was  called  at  the  Haymarket  on  the  appointed  evening.  That 
day  the  signal  "Ruhe"  was  printed,  to  begin  the  revolution.  In 
pursuance  of  the  plan,  and  varying  from  it  only  as  was  made  nec- 
essary by  the  location  of  the  police,  a  bomb  was  first  hurled  at 
them  and  then  the  "  Internationals"  opened  fire  with  guns.  The 
jury  were  justified  in  believing  that  the  bomb  was  thrown  either  by 
a  member  of  the  conspiracy  or  by  an  agent  employed  to  throw  it. 

This  case  aroused  the  greatest  of  interest  and  excitement. 
The  accused  were  found  guilty  and  executed,  as  already  stated. 

Declarations    and  Acts  Indicative    of  Guilty    Consciousness    or 

Intention. 

After  the  doing  of  an  act  has  been  proved,  to  show  that  a  cer- 
tain person  did  it,  a  prior  declaration  of  his  intention  to  do  it  may 
be  proved.     Dodge  v.  Bache,  57  Pa.  St.  421. 

Premeditation,  Intent,  and  Malice. 

Malice,  deliberation,  or  premeditation  must  in  nearly  all  cases 
be  shown  by  circumstantial  evidence.  The  number  of  circum- 
stances necessary  to  show  this  will  of  course  vary.  "  One  case 
may  be  proved  by  a  long  train  of  circumstances  and  events,  an- 
other by  a  few  sharp  and  startling  facts,  and  in  still  another  the 
jury  may  find  in  the  very  act  of  killing,  in  the  manner  in  which  it 


154^  AMERICAN   NOTES. 

was  done,  the  weapon  used,  the  number  of  blows  and  wounds, 
the  lime  and  place  where  effected,  tiie  disposition  of  the  victim, 
and  the  objects  accomplisiied,  everything  requisite  to  satisfy  them 
of  the  presence  of  deliberation  and  premeditation  as  components  of 
the  crime."     People  v.  Walworth,  4  N.  Y.  Crini.  355. 

The  nature  of  the  weapon,  the  number  of  blows  given,  and  pre- 
vious conduct  are  relevant  to  prove  malice  and  deliberation. 
State  V.  Greenleaf,  71  N.  H.  606  ;  Com.  v.  Kilpatrick,  204  Pa. 
fet.  218  ;  Thomas  v.  State  (Tex.),  72  S.  VV.  17S. 

The  number  and  position  of  the  wounds  on  the  body  of  the 
deceased  may  be  shown  to  prove  the  deadly  intent  with  which  the 
defendant  fired.     People  v.  Walters,  98  Cal.  138. 

Declarations  of  Accused  to  Prove  his  Intent  or  Malice. 

Declarations  of  one  accused  of  murder  made  before  the  crime  are 
admissible  to  prove  intent.    State  v.  Ridgely,  2  Har.  &:  McH.  120. 

The  testimony  of  a  witness  who  overheard  the  defendant  say  he 
was  going  to  kill  the  deceased  and  ask  for  some  shells  is  admissi- 
ble.    Davis  V.  State,  126  Ala.  44. 

Proof  of  Intent — Declarations. 

In  the  case  of  Mutual  Life  Ins.  Co.  v.  Hillmon,  145  U.  S. 
285,  which  was  a  suit  on  an  insurance  policy,  the  defence  of  the 
company  was  that  the  insured,  Jno.  W.  Hillmon.  was  still  alive, 
but  that  he  had  killed  one  Walters,  and  the  body  of  the  latter  had 
been  buried  as  that  of  Hillmon.  To  prove  that  this  body  was  not 
that  of  Hillmon,  the  following  evidence  was  held  admissible;  that 
Walters  disappeared  at  about  that  time  and  was  not  heard  from 
afterwards;  that  it  had  been  his  intention  to  go  on  a  trip  with 
Hillmon  at  that  time,  as  was  evidenced  by  his  letters  to  his  sister 
and  to  his  betrothed,  and  that  the  body  buried  was  similar  to 
that  of  Walters.  The  letters  expressing  his  intention  to  go  with 
Hillmon  on  the  very  trip  where  Hillmon  was  claimed  to  have  been 
killed  was  held  admissible. 

Declarations  showing  malice  towards  the  victim  are  admissible 
(Mead  v.  Husted,  49  Conn.  337  ;  State  v.  Hoyt,  46  Conn.  330  ; 
Com.  V.  Goodwin,  14  Gray  (Mass.),  55  ;  Com.  v.  Holmes,  157 
Mass.  235)  ;  and  so  is  a  declaration  of  intention  to  do  the  act. 
Mills  V.  Sword  Lumber  Co.,  63  Conn.  108. 


AMERICAN   NOTES.  154" 

But  a  tleclaration  that  one  will  not  do  a  certain  act  is  not  ad- 
missible to  show  that  he  did  not  do  it.     Fowler  v.  Madison,  55 

N.  H.  171. 

Purpose  on  Leaving  Home. 

When  an  act  is  part  of  the  res  gestce,  statements  explanatory 
thereof  and  concomitant  therewith  are  admissible.  Oral  and  writ- 
ten statements  made  on  leaving  home  as  to  purpose  and  place  of 
going  admitted.      Hunter  v.  State,  40  N.  J.  L.  495. 

Shiie  of  Mind  in  Homicide. 

The  State  may  show  that  the  accused  was  armed  and  vindictive 
shortly  before  the  homicide.     Kernan  v.  State,  65  Md.  253. 

The  existence  of  lawsuits  between  parties  is  admissible  to  show 
their  state  of  feeling.     State  v.  Zellers,  7  N.  J.  L.  220. 

A  letter  written  a  month  before  the  homicide  admitted  to  show 
the  state  of  defendant's  mind  toward  the  deceased.  Com.  v. 
Krause,  193  Pa.  St.  306. 

Evidence  of  prisoner's  being  armed  and  in  a  vicious  humor  just 
before  the  offence  is  admissible,  even  though  it  incidently  dis- 
closes another  crime.      Kernan  v.  State,  65  Md.  253. 

Allusions  to  a   Contemplated  Act. 

Where  defendant  was  charged  with  the  murder  of  his  father,  ob- 
scure allusions  made  by  him  to  some  coming  event  were  admitted. 
"  The  fact  that  the  language  might  possibly  have  an  innocent 
meaning  did  not  prevent  its  consideration  by  the  jury,  who  would 
of  course  be  called  upon  to  decide  whether  such  was  the  fact,  or 
whether  it  was  a  dark  hint  thrown  from  a  mind  that  already  felt 
the  shadow  of  the  coming  tragedy."  State  v.  Hoyt,  47  Conn. 
518. 

Defendant  was  accused  of  having  committed  a  crime  for 
hire.  His  statement  that  he  was  soon  to  receive  some  money  was 
admitted.     State  v.  Green,  92  N.  C.  779. 

In  State  v.  Hayward,  62  Minn.  474.  it  was  shown  that  several 
months  before  the  crime  in  question  the  accused  had  consulted 
with  a  hack-driver  about  letting  his  team  run  away  with  a  certain 
individual  over  a  bluff  into  a  lake,  and  had  asked  him  how  much 
he  would  take  for  the  horses  and  hack.  This  was  admissible  to 
show  that  the  accused  contemplated  murder. 


154^  AMERICAN   NOTES. 

Possess iof I  of  Knowledge  which  only  the    Criminal  Could  Have. 

Where  one  is  charged  with  a  burglary  and  homicide,  he  may  be 
shown  to  have  had  a  guilty  knowledge  of  the  location  of  objects  in 
the  house  entered.     State  v.  Miller,  loo  Mo.  606. 

Defendant,  charged  with  the  murder  of  his  wife,  was  shown  to 
have  married  again  within  three  weeks  after  her  disappearance, 
and  to  have  said  that  she  would  never  come  back  because  she  was 
dead.     Wilson  v.  State,  43  Tex.  472. 

Conduct  Indicating  Guilty  Knowledge. 

Where  the  defendant  was  charged  with  strangling  a  woman,  on 
September  lyih,  it  was  admitted  in  evidence  that  on  September  22d 
the  defendant  remarked  after  a  row  had  occurred  in  a  grocery,  that 
he  could  easily  rid  the  grocery,  and  "  could  kill  a  man  by  throwing 
him  on  the  ground,  jamming  his  knees  into  him,  and  knocking  the 
breath  out  of  him,  then  grasping  him  by  the  throat  and  his  breath 
would  never  return."  The  evidence  showed  that  this  may  have 
been  the  manner  in  which  the  deceased  was  killed.  Moore  v. 
State,  2  Ohio  St.  500. 

Subsequent  conduct  showing  consciousness  of  guilt  is  admissible. 
McCabe  v.  Com.,  8  Atl.  45. 

Where  a  body  was  found  in  a  well,  it  was  shown  that  prior  to 
the  discovery  the  defendant  was  seen  looking  into  the  well ;  that 
when  another  left  the  house  with  a  lantern  the  defendant  said 
he  knew  that  other  was  going  to  look  into  the  well ;  and  that  after 
the  discovery,  although  others  went  to  the  well,  the  defendant  did 
not.     Com.  V.  Umilian,  177  Mass.  582. 

"  Sometimes  a  person  is  detected  as  the  author  of  a  crime  by 
showing  an  unusual  anxiety  to  discover  the  perpetrator ;  at  other 
times  the  discovery  is  led  to  by  the  person  showing  too  much  in- 
difference. In  some  instances  the  observation  that  the  person 
appears  to  know  too  much  about  the  transaction  leads  to  the  dis- 
covery ;  at  other  times  the  inquiry  is  started  by  his  appearing  to 
know  too  little.  These  are  generally  acts  that  in  themselves  show 
no  disposition  to  do  mischief;  but  it  is  because  they  are  unnatural, 
because  they  tend  to  the  conclusion  that  they  are  produced  by  a 
mind  conscious  of  its  guilt,  that  they  are  provable  against  the 
accused."     Moore  v.  State,  2  Oliio  St.  502.      In  this  case  defend- 


AMERICAN   NOTES.  154W 

ant's  conduct  when  he  was  told  that  the  body  of  the  deceased  had 
been  found  was  given  in  evidence. 

In  State  v.  Miller,  156  Mo.  76,  the  defendant  was  shown  to  be 
the  murderer  by  proof  of  threats  and  motive  and  by  the  guilty 
conscience  he  evinced  when  the  search  of  a  certain  well  was  pro- 
posed. He  asserted  that  the  well  had  damps  in  it,  and  that  it 
would  be  dangerous  to  go  into  it.  In  the  well  was  found  an  axe 
helve  with  which  the  murder  was  don-e. 


Fo re ktww ledge   of  Death. 

In  a  recent  case  reported  in  the  daily  papers,  it  appears  that  a 
man  in  Chicago  was  accused  of  marrying  and  murdering  eight 
wives  in  as  many  years.  The  means  used  by  him  seemed  to  be 
poison,  yet  if  so,  it  defied  chemical  analysis.  But  he  had  married 
the  wives  under  different  names,  and  his  operations  were  discovered 
through  his  action  in  advertising  under  a  new  name  for  a  ninth 
wife,  while  his  eighth  wife  was  still  lingering  in  sickness  and  three 
days  before  her  death.  Apparently  he  was  very  confident  that  she 
would  soon  be  dead,  and  it  would  seem  that  his  previous  expe- 
riences warranted  his  confidence.  Such  premature  confidence  is 
strong  evidence  of  guilt.  In  this  case  the  advertisement  was  an- 
swered fortuitously  by  his  still  living  wife's  own  sister. 

Where  the  defendant  was  charged  with  the  murder  of  her  sister  by 
poison  in  pursuance  of  a  scheme  to  secure  insurance  money,  one  of 
the  strongest  circumstances  against  the  defendant  was  the  fact  that 
several  times  while  taking  care  of  her  sister  she  said  she  knew  her 
sister  would  never  get  well  and  that  she  had  had  a  terrible  dream 
warning  her  of  her  sister's  impending  death.  At  the  time  her  sister 
was  seemingly  much  better,  but  shortly  after  she  had  a  sudden 
sinking  spell  and  died.     Com.  v.  Robinson,  146  Mass.  570. 

The  defendant  in  a  murder  case  may  be  shown  to  have  said 
that  he  wished  the  deceased  would  die  and  that  some  day  the 
deceased  would  be  found  dead  in  his  fields.  Wade  v.  State,  65 
Ga.  756. 

Where  the  deceased  was  a  material  witness  against  the  defend- 
ant in  a  former  trial,  it  was  shown  that  the  latter  had  said  the 
deceased  would  never  appear  at  that  trial.  Caldwell  v.  State, 
28  Tex.  App.  566. 


I54.r  AMERICAN  NOTES. 

Malignant  Indifference. 

Where  tlic  defendant  was  charged  with  the  murder  of  his  wife  it 
may  be  shown  that  on  the  day  after  her  death  he  shed  no  tears  and 
was  indifferent,  and  tliat  when  one  remarked  to  him  that  it  was 
a  sad  affiair  at  iiis  house,  he  repHetl,  "Yes,  I  had  a  load  of  oats 
stolen."     People  v.  Greenfield,  85  N.  Y.  75,  39  Am.  Rep.  636. 

Where  the  defendant  was  charged  with  poisoning  his  seventeen 
year  old  wife  during  her  confinement,  it  was  allowed  to  be  proved 
that  he  had  threatened  to  send  her  home  to  her  father,  had  called 
her  "  a  d — d  big-footed  scjuaw,  had  forced  her  to  do  dangerous  labor 
out-doors  in  insufficient  clothing,  and  that  when  she  was  dying  .  .  . 
he  commenced  talking  about  his  orchard  and  improving  his  home, 
and  put  on  a  jovial  and  frivolous  air."    State  v.  Cole,  63  Iowa,  695. 

Danger  of  Giving  Demeanor  too  much    Weight. 

"  Such  indications,  however,  are  by  no  means  conclusive,  and 
must  depend  greatly  upon  the  mental  characteristics  of  the  indi- 
vidual. Innocent  persons,  appalled  by  the  enormity  of  a  charge 
of  crime,  will  sometimes  exhibit  great  weakness  and  terror,  and 
those  who  have  been  crushed  with  the  weight  of  great  sorrow  will 
manifest  the  greatest  composure  and  serenity  in  their  grief,  and 
meet  it  without  the  shedding  of  a  tear."  Greenfield  ?'.  People,  85 
N.  Y.  75.  In  this  case  the  defendant  was  accused  of  killing  his 
wife,  and  it  was  allowed  to  be  shown  that  he  shed  no  tears. 

Threats  —  General  Authorities. 

Threats  to  do  the  act  may  be  proved.  Caverno  v.  Jones,  61 
N.  H.  623;  State  v.  Day,  79  Me.  120;  State  %k  Bradley,  64  Vt. 
466,  24  Atl.  1053  ;  Mead  v.  Husted,  49  Conn.  337  ;  State  v. 
Hoyt,  46  Conn.  330 ;  State  v.  Hawley,  63  Conn.  49  ;  State  v. 
Kallaher,  70  Conn.  398  ;  State  v.  Fry,  67  Iowa,  475  ;  People 
V.  Eaton,  59  Mich.  559  ;  Com.  v.  Holmes,  157  Mass.  233  ;  Com.  v. 
Crowe,  165  Mass.  140;  Com.  v.  Crossmire,  156  Pa.  304;  School- 
craft V.  People,  117  111.  271;  State  v.  Harrod,  102  Mo.  590; 
State  V.  McKinney,  31   Kan.  570. 

Where  the  defendant  took  no  part  in  the  act  of  murder,  he 
may  be  shown  to  have  been  an  accessory  by  his  previous  acts, 
declarations,  and  threats.     State  v.  Prater,  52  W.  Va.  132. 


AMERICAN   NOTES.  154^ 

The  defendant  charged  wilh  assault  with  intent  to  kill  may  be 
shown  to  have  challenged  the  prosecuting  witness  to  meet  him  in  a 
dark  alley.     Low  v.  State  (Tex.),  20  S.  W.  366. 

The  State  may  show  that  the  defendant  had  previously  made 
threats  against  the  deceased  to  prove  malice  or  disi:)osilion  toward 
the  deceased.  State  z-.  Sullivan,  5  i  Iowa,  142  ;  Babcock  z'.  People, 
13  Colo.  515  ;  State  v.  Stockhouse,  24  Kan.  445  ;  State  v.  Agnew, 
10  N.  J.  L.  J.  165  ;  Stewart  v.  State,  i  Ohio  St.  66. 

General  Threats. 

Threats  may  be  proved  even  though  they  were  general  in  nature 
and  made  no  specific  mention  of  the  deceased,  unless  it  is  evident 
that  they  had  no  connection  with  the  crime  in  question.  Jordan  v. 
State,  79  x-Ma.  9  :  State  v.  Windahl,  95  Iowa,  470 ;  State  v.  Hymer, 
15  Nev.  49;  Hopkins  v.  Com.,  50  Pa.  g,  88  Am.  Dec.  518; 
Snodgrass  v.  Com.,  89  Va.  679. 

The  State  may  show  that  defendant  threatened  to  kill  somebody 
before  night,  though  he  did  not  mention  the  deceased.  State  v. 
Vance,  29  Wash.  435. 

The  defendant  may  be  sliown  to  have  said  that  he  would  "  kill 
a  man  before  sundown."     Hodge  v.  State,  26  Fla.  11. 

Threats  are  admissible  though  not  made  directly  against  the  de- 
ceased.    Hopkins  v.  Com.,  50  Pa.  St.  9. 

The  defendant  may  be  shown  to  have  said  that  he  was  going  to 
get  even  with  somebody,  though  no  name  was  mentioned.  State 
V.  Harlan,  130  Mo.  381. 

Threats  against  a    Class. 

One  on  trial  for  killing  a  policeman  may  be  shown  to  have  said 
that  he  would  "  kill  any  policeman  who  tried  to  arrest  him  again." 
State  V.  Grant,  79  Mo.  113,  49  Am.  Rep.  218, 

Threats  against  Third  Persons. 

Generally  threats  made  by  the  defendant  against  persons,  not  in 
any  way  involved  in  the  crime  with  which  he  is  charged,  are  not 
generally  admissible  against  him.  State  v.  Driscoll,  44  Iowa,  65  ; 
Carr  v.  State,  23  Neb.  749  ;  State  v.  Barfield,  29  N.  C  299 ; 
Abernathy  v.  Com.,  loi   Pa.  St.  322. 

A  threat  to  shoot  another  constable  than  the  one  making  the 


154"  AMERICAN    NOTES. 

arrest  is  admissible  as  against  one  charged  with  shooting  the  officer 
arresting  him.  Palmer  v.  People,  138  111.  356,  32  Am.  St.  Rep. 
146;  State  7'.  Partlow,  90  Mo.  608,  59  Am.  Rep.  31  (similar 
case). 

Where  there  is  evidence  tending  to  show  that  the  defendant 
killed  the  deceased  believing  him  to  be  another,  threats  by  the 
defendant  against  that  other  are  admissible.  Clarke  v.  State,  78 
Ala.  474,  56  Am.  Rep.  45. 

Threats  made  by  defendant  to  kill  A  are  not  admissible  on  his 
trial  for  the  killing  of  B.     Abernathy  v.  Com.,  loi  Pa.  St.  322. 

Threats  agai?ist  Prosecuting  Attorney. 

It  is  error  to  admit  threats  by  the  accused  against  the  prosecuting 
attorney  made  subsequent  to  the  crime  unless  there  is  something  to 
show  an  intent  to  prevent  investigation  or  a  consciousness  of  guilt. 
Gawn  V.  State,  7  Circ.  Dec.  19,  13  Ohio  Circ.  Ct.  116. 

Threats  to   Commit  a  Different  Crime. 

A  threat  to  rob  is  admissible  on  a  trial  for  murder.  Com.  v. 
Farrell,  187  Pa.  St.  408. 

Threats  with  a  Different   Weapon. 

Where  the  defendant  is  charged  with  murder  by  poisoning,  it  is 
proper  to  show  that  he  had  threatened  the  deceased  with  a  sling 
shot.     Le  Bean  v.  People,  34  N.  Y.  223. 

Exhibition  of  a    Weapon. 

A  threat  is  more  significant  if  a  deadly  weapon  is  exhibited  at 
the  time.     Benedict  v.  State,  14  Wis.  459. 

The  previous  possession  of  a  gun  with  threats  to  kill  the  de- 
ceased may  be  proved.     People  v.  Fitzgerald,  138  Cal.  39. 

Unconnnunicated  Threats. 

Uncommunicated  threats  are  admissible  to  show  motive  and 
intention.     Com.  v.  Keller,  191  Pa.  St.  122. 

Threats  and  the  purchase  of  ammunition  by  the  deceased 
are  not  admissible  on  behalf  of  the  accused  when  he  did  not 
know  of  either.  Turpin  v.  State,  53  Md.  462.  And  see  Notes 
to  Chapter  5. 


AMERICAN   NOTES.  154  a* 

Time  of  Making  Threats. 

Where  thirteen  years  before  the  crime  the  accused  had  said 
"  he  would  like  to  put  a  ball  through  his  father's  heart,  but  the 
heart  was  so  much  harder  than  the  ball  that  he  thought  it  would 
not  penetrate  it,"  a  jury  may  well  give  very  little  weight  to  such 
language  because  of  its  remoteness.     Goodwin  v.  State,  96  Ind. 

550- 

Threats  of  the  defendant  against  the  deceased  may  be  proved, 
even  though  they  were  made  weeks  or  even  months  before  the 
crime,  in  case  any  connection  whatever  can  be  made  between  the 
threats  and  the  act.  The  lapse  of  time  affects  only  their  weight  as 
evidence.  Karr  v.  State,  106  Ala.  i  ;  White  v.  Terr.,  3  Wash.  T. 
397  ;  Tuttle  V.  Com.  (Ky.),  33  S.  W.  823. 

Threats  may  be  given  in  evidence  irrespective  of  the  length  of 
time  since  elapsed.  "  If  a  long  period  intervened,  during  which 
there  were  opportunities  of  doing  the  threatened  injury,  and  there 
was  no  attempt  to  do  it,  and  no  repetition  of  the  threat,  it  would 
be  but  a  slight  circumstance  in  connecting  the  accused  with  the 
injury,  and  there  would  be  more  reason  for  regarding  it  as  having 
been  a  mere  careless,  thoughtless  utterance  or  idle  bravado,  or 
ebullition  of  temporary  passion.  The  length  of  time  would  mipair 
its  probative  force,  but  would  not  render  it  inadmissible."  Redd 
V.  State,  68  Ala.  492. 

Threats  made  four  or  five  years  back  held  too  remote.  Mc- 
Masters  v.  State  (Miss.),  t^i  So.  2. 

Previous   Quarrels  and  Ill-Feeling. 

A  previous  difficulty  between  the  defendant  and  the  deceased 
is  admissible  to  show  motive  and  malice.  Finch  v.  State,  81  Ala. 
41  ;  White  v.  State,  30  Tex.  App.  652  ;  State  z/.  Ackles,  8  Wash. 
462  ;  Brown  v.  State,  51  Ga.  502  ;  Rone  v.  Com.,  70  S.  W.  1042. 

But  some  connection  between  that  difficulty  and  the  homicide 
must  be  shown.  Flint  v.  Com.,  5  Ky.  Law.  Rep.  51  ;  Pound  v. 
State,  43  Ga.  88  ;  Hudson  v.  Com.,  69  S.  W.  1079. 

Previous  ill-feeling  and  malice  toward  the  deceased  may  be 
proved.  State  v.  Cole,  63  Iowa,  695  ;  Holmes  v.  State,  100  Ala. 
80 ;  State  v.  De  Angelo,  9  La.  Ann.  46  ;  Aycock  v.  State,  2  Tex. 
App.  38 1. 


154^*  AMERICAN   NOTES. 

Dissatisfaction  with  a  previous  settlement  for  wages  may  be 
proved.      Hudson  v.  State  (Tex.),  70  S.  W.  764. 

Tlie  State  may  show  that  the  deceased  liad  shortly  before  chal- 
lenged the  vote  of  the  defendant.     Thompson  v.  State,  55  Ga.  47. 

A  disputed  account  between  defendant  and  deceased  admitted 
to  prove  ill-feeling.     State  v.  Gooch,  94  N.  C  987. 

It  may  be  shown  that  at  a  previous  trial  where  defendant  was  a 
witness,  the  deceased  gave  evidence  to  impeach  defendant's  testi- 
mony and  the  latter  was  very  angry.     Rea  v.  State,  76  Tenn.  356. 

Feuds. 

Where  the  defendant  and  the  deceased  were  aligned  with  two 
parties  who  were  involved  in  a  continuous  feud,  previous  fights  of 
other  members  of  the  two  parties  may  be  proved.  McGinnis  v. 
State,  31  Ga.  236. 

The  origin  of  a  continuous  feud  between  the  parties  may  be 
shown.     Coxwell  v.  State,  66  Ga.  309. 

Remote   Quarrels. 

Evidence  of  remote  quarrels  is  not  admissible  unless  they  are 
connected  with  the  homicide.  Horton  v.  State,  no  Ga.  739; 
Woodward  v.  State  (Tex.),  58  S.  W.  135. 

Evidence  of  a  previous  difficulty  is  admissible,  even  though  it 
be  a  remote  one.     People  v.  Brown,  76  Cal.  573. 

Details  of  the  Previous   Quarrels. 

The  circumstances  and  merits  of  the  previous  difficulty  are  not 
admissible  (Tarver  v.  State,  43  Ala.  354  ;  McAnally  v.  State,  74 
Ala.  9  ;  Stewart  v.  State,  78  Ala.  436  ;  People  v.  Thomson,  92 
Cal.  506)  ;  but  sucli  details  may  be  admissible  to  prove  threats  and 
ill-feeling.     State  v.  Anderson,  45  La.  Ann.  651. 

The  defendant  need  not  be  given  an  opportunity  to  cross-ex- 
amine as  to  the  details  and  circumstances  of  a  previous  difficulty 
between  him  and  the  deceased.     Com.  v.  Silk,  in  Mass.  431. 

Wife  Murder. 

Previous  bad  feeling  between  the  defendant  and  his  wife  may  be 

proved.    Shaw^-.  State,  60  Ga.  246  ;  Painter  v.  People,  147  111.  444. 

Where  defendant  is  charged  with  the  murder  of  his  wife,  it  may 


AMERICAN   NOTES.  154^* 

be  shown  lliat  within  two  months  tliere  had  been  bruises  on  her 
body  made  l)y  iiim.      Philhps  -'.  State,  62  Ark.  119. 

Threats  of  defendant  to  shoot  his  wife  and  their  previous  domes- 
tic infehcity  may  be  proved.      People  v.  Simpson,  48  Mich.  474. 

A  previous  aggravated  assault  upon  the  wife  may  be  proved. 
Powell  V.  State  (Tex.),  70  S.  W.  218. 

Defendant  may  be  shown  to  have  mistreated  his  wife  for  five 
years  preceding  the  crime.     Spears  v.  State  (Tex.),  56  S.  W.  347. 

But  defendant's  ill-treatment  of  his  wife  ten  years  previously 
sliould  not  be  admitted.    Raines  v.  State  (Miss.),  ^^i  So.  19. 

Proof  of  Similar  Acts  or   Words  in    General. 

"  When  there  is  a  question  whether  a  person  said  or  did  some- 
thing, the  fact  that  he  said  or  did  something  of  the  same  sort  on  a 
different  occasion  may  be  proved  if  it  shows  the  existence  on  the 
occasion  in  question  of  any  intention,  knowledge,  good  or  bad 
faith,  malice,  or  other  state  of  mind,  or  of  any  state  of  body  or 
bodily  feeling,  the  existence  of  which  is  in  issue  or  is  or  is  deemed 
to  be  relevant  to  the  issue  ;  but  such  acts  or  words  may  not  be 
proved  merely  in  order  to  show  that  the  person  so  acting  or 
speaking  was  likely  on  the  occasion  in  question  to  act  in  a  similar 
manner."     Stephen  Dig.  Evid.  Art.  11. 

"  In  such  cases  it  might  well  happen  that  a  man  should  shoot 
another  accidentally,  but  that  he  should  do  it  twice  within  a  short 
time  would  be  very  unlikely ;  so,  it  might  easily  happen  that  a  man 
using  a  gun  might  fire  a  rick  of  barley  once  by  accident,  but  that 
he  should  do  it  several  times  in  succession  would  be  very  improb- 
able. So,  a  person  might  die  of  accidental  poisoning,  but  that 
several  persons  should  so  die  in  the  same  family  at  different  times 
would  be  very  unlikely.  So,  that  a  child  should  be  suffocated  in 
bed  by  its  mother  might  happen  once,  but  several  similar  deaths 
in  the  same  family  could  not  reasonably  be  accounted  for  as 
accidents.  So,  in  the  case  of  embezzlement,  a  single  false  entry 
might  be  accidentally  made  ;  but  the  probability  of  accident  would 
diminish  at  least  as  fast  as  the  instances  increased."  State  v. 
Lapage,  57  N.  H.  245,  294. 

Other  crimes  may  be  relevant  if  they  show  the  same  general 
purpose.  Brown  v.  Com.,  76  Pa.  St.  319  ;  Kramer  v.  Com.,  87 
Pa.  St.  299  ;  Goersen  v.  Com.,  99  Pa.  St.  388. 


154^  AMERICAN   NOTES. 

Res  Inter  Alios. 

As  to  the  meaning  of  the  maxim,  "  Res  inter  alios  acta  alteri 
nocere  debet,"  Stephen  says  in  his  Appendix,  Note  VI  :  "  You 
are  not  to  tlraw  inferences  from  one  transaction  to  anotlier  which 
is  not  si)ecirically  connected  with  it  merely  because  tiie  two  re- 
semble each  other.  They  must  be  linked  together  by  the  chain 
of  cause  and  effect  in  some  assignable  way  before  you  ran  draw 
your  inference. 

"The  exceptions  to  the  rule  apply  more  frecjuently  to  criminal 
than  to  civil  proceedings,  and  in  criminal  cases  the  Courts  are 
always  disinclined  to  run  the  risk  of  prejudicing  the  prisoner  by 
permitting  matters  to  be  proved  which  tend  to  show  that  he  is  a 
bad  man,  and  so  likely  to  commit  a  crime." 

Other   Crimes  —  /;/   Gefiera/  when  not  Admissible. 

Proof  of  other  crimes  is  not  generally  admissible.  Lamb  v. 
State,  66  Md.  285. 

Other  offences  of  a  like  nature  are  not  provable  merely  to  show 
that  defendant  would  be  likely  to  commit  the  crime  in  (juestion. 
Clark  V.  State,  47  N.  J.  L.  556  ;  Ryan  v.  State,  60  N.  J.  L.  552  ; 
State  V.  Sprague,  64  N.  J.  L.  419  ;   Bullock  v.  State,  65    N.  J.  L. 

557- 

"The  question  is,  whether  A  committed  a  crime.  The  fact  that 
he  formerly  committed  another  crime  of  the  same  sort,  and  had 
a  tendency  to  commit  such  crimes,  is  deemed  to  be  irrelevant." 
Stephen,  Dig.  Evid.  Art.  10.  See  Dodge  v.  Haskell,  69  Me. 
429;  State  V.  Renton,  15  N.  H.  169,  174;  State  z;.  Wentvvorth,  37 
N.  H.  197,  209  ;  Reed  v.  Spaulding,  42  N.  H.  1 14-124;  State  v. 
Lapage,  57  N.  H.  245  ;  State  v.  HopI<ins,  50  Vt.  316;  State  v. 
Kelly,  65  Vt.  531,  27  Atl.  203,  36  Am.  Rep.  884.  The  fact  that 
the  accused  has  committed  similar  frauds  or  crimes  is  incompetent. 
Jordan  v.  Osgood,  109  Mass.  457  ;  Costelo  v.  Crowell,  139  Mass. 
588 ;  Com.  V.  Call,  21  Pick.  (Mass.)  522  ;  Com.  v.  Wilson,  2  Cush. 
(Mass.)  590;  Com.  v.  Campbell,  7  Allen  (Mass.),  541,  83  Am. 
Dec.  705  ;  Jordan  v.  Osgood,  109  Mass.  457  ;  Com.  v.  Jackson, 
132  Mass.  16,  19,  44  Am.  Rep.  299,  note;  Miller  v.  Curtis,  158 
Mass.  129;  Janzen  v.  People,  159  111.  440;  Boyd  v.  U.  S.,  142 
U.  S.  450;   Shaffner  v.  Com.,  72  Pa.  60. 


AMERICAN   NOTES.  154^^* 

Other  crimes  not  admissible.  Barton  v.  State,  i8  Ohio,  221 
(other  tiiefts)  ;  Coble  v.  State,  31  Ohio  St.  100  (other  assaults)  ; 
Farrer  v.  State,  2  Ohio  St.  54  (other  poisonings,  the  victims 
being  of  the  same  family)  ;  Snurr  v.  State,  4  Ohio  Circ.  Ct.  393 
(other  acts  of  rape)  ;  Knight  v.  State,  54  Ohio  St.  365  (other 
acts  of  bribery)  ;  Rose  v.  State,  7  Circ.  Dec.  226,  13  Ohio  Circ. 
Ct.  342,  56  Ohio  St.  779  (seduction  before  murder). 

In  an  action  for  assault,  similar  assaults  cannot  be  proved. 
Mathews  v.  Terry,  10  Conn.  459. 

Other  crimes  cannot  be  shown  on  cross-examination.  Hamilton 
v.  State,  34  Ohio  St.  82. 

Other   Crimes  —  Wheti  Admissible. 

Proof  of  other  crimes  admissible  to  show  motive  and  intent. 
Goersen  r.  Com.,  99  Pa.  St.  388,  106  Pa.  St.  477  (arsenical 
poisoning)  ;  McConkey  v.  Com.,  loi  Pa.  St.  416  ;  Kramer  v.  Com., 
8/  Pa.  St.  299  ;  Com.  v.  Shepherd,  2  Pa.  St.  Dist.  345. 

If  the  evidence  is  admissible  on  other  grounds,  its  competency 
is  not  affected  by  the  fact  that  it  proves  other  crimes.  Brown  v. 
State,  26  Ohio  St.  176. 

The  commission  of  a  burglary  by  the  defendant  is  admissible  to 
explain  why  an  officer  was  in  a  certain  house  where  he  was  killed 
by  defendant.     Com.  v.  Major,  198  Pa.  St.  290. 

The  State  may  prove  the  circumstances  of  making  the  arrest, 
including  the  fact  that  the  defendant  killed  one  of  the  otificers. 
Com.  V.  Biddle,   2co  Pa.  St.   647. 

Receiving  Stolen    Goods  —  Other  Instances. 

"  Where*  proceedings  are  taken  against  any  person  for  having 
received  goods,  knowing  them  to  be  stolen,  or  for  having  in  his 
possession  stolen  property,  the  fact  tliat  there  was  found  in  the 
possession  of  such  person  other  property  stolen  within  the  pre- 
ceding period  of  twelve  months,  is  deemed  to  be  relevant  to  the 
question  whether  he  knew  the  property  to  be  stolen  which  forms 
the  subject  of  the  proceedings  taken  against  him."  Stephen's  Dig. 
Evid.  Art  1 1. 

Other  instances  of  receiving  stolen  goods  are  provable.  Com. 
V.  Charles,  21  Pittsb.  Leg.  J.  11,  14  Phila.  663  ;  Com.  v.  Moorby, 


154/*  AMERICAN   NOTES. 

8    Phila.  615  ;   Com.  7:   Johnson,   133    Pa.  St.    293  ;    Kilrow  v. 
Com.,  89  Pa.   St.  480. 

To  prove  guiltv  knowledge  on  the  part  of  receiver  of  stolen 
goods,  it  may  be  proved  tiiat  he  had  before  received  stolen  goods 
from  the  same  person.  State  v.  VVani,  49  Conn.  440;  Com.  v. 
Johnson,  133  Pa.  St.  293  ;  Shriedley  v.  State,  23  Oliio  St.  130. 

It  is  not  necessary  that  the  goods  before  received  should  have 
been  stolen  from  the  same  person,  nor  be  of  the  same  character. 
State  V.  Ward,  49  Conn.  441,  442. 

A  is  charged  with  receiving  two  j)ieces  of  silk  from  B.  knowing 
them  to  have  been  stolen  by  him  from  C.  The  facts  that  A  re- 
ceived from  B  many  other  articles  stolen  by  him  from  C  in  the 
course  of  several  months,  and  that  A  pledged  all  of  them,  are 
deemed  to  be  relevant  to  the  fact  that  A  knew  that  the  two 
pieces  of  silk  were  stolen  by  B  from  C.  R.  v.  Dunn  (1826), 
I   Moo.  C.  C.   146;  Stephen's  Dig.  Evi(].   Art.    11. 

Possession  of  other  stolen  goods  purchased  from  the  same  thief 
is  evidence  of  guilty  knowledge.  People  v.  Grossman,  168  N.  Y. 
47  ;  State  V.  Wood,  49  Conn.  429;  People  v.  Doty,  175  N.  Y. 
164. 

Other   Thefts. 

Other  thefts  to  show  knowledge  of  ownership  and  intent  to 
steal.  People  v.  Machen,  loi  Mich.  401  ;  Housh  v.  People,  24 
Colo.  262  ;  Williams  v.  People,  166  111.  132. 

Proof  of  Fraudulent  Intent. 

Obtaining  property  of  other  persons  in  the  same  manner  to 
show  fraudulent  intent.  Com.  v.  Lubinsky,  182  Mass.  142  ; 
State  V.  Jackson,  112  Mo.  585;  State  v.  Wilson,  72  Minn.  522. 

Proof  of  other  similar  fraudulent  acts  is  admissible  to  show 
intent  to  cheat  and  defraud.     Bloomer  v.  State,  48  Md.  521. 

In  Bottomley  v.  U.  S.,  i  Story,  135.  142,  to  show  fraud  in  the 
importation  of  goods,  evidence  of  other  importations  by  the  party 
was  admitted.  Judge  Story  says  :  '•  But  it  appears  to  nie  clearly 
admissible  upon  the  general  doctrine  of  evidence  in  cases  of  con- 
spiracy and  fraud,  where  other  acts  in  furtherance  of  the  same 
general  fraudulent  design  are  admissible  :  first,  to  establish  the 
fact  that  there  is  such  a  conspiracy  and    fraud  ;    and,  secondly, 


AMERICAN  NOTES.  1 54^* 

to  repel  the  suggestion  that  the  acts  might  be  fairly  attributed  to 
accident,  m-istake,  or  innocent  rashness  or  negh'gence.  In  most 
cases  of  conspiracy  and  fraud,  the  question  of  intent,  or  purpose, 
or  design  in  the  act  done,  wliether  innocent  or  illegal,  whether 
honest  or  fraudulent,  rarely  admits  of  direct  and  positive  proof; 
but  it  is  to  be  deduced  from  various  circumstances  of  more  or 
less  stringency,  and  often  occurring  not  merely  between  the  same 
parties,  but  between  the  party  charged  with  the  conspiracy  or 
fraud  and  third  persons.  And  in  all  cases  where  the  guilt  of  the 
party  depends  upon  the  intent,  purpose,  or  design  with  which 
the  act  is  done,  or  upon  his  guilty  knowledge  thereof,  I  under- 
stand it  to  be  a  general  rule  that  collateral  facts  may  be  examined 
into,  in  which  he  bore  a  part,  for  the  purpose  of  establishing  such 
guilty  intent,  design,  purpose,  or  knowledge."  Thereupon  follow 
examples  where  such  evidence  is  admitted  as  prosecutions  for 
the  utterance  of  a  forged  bill  or  note,  for  the  utterance  of  counter- 
feit money,  and  for  receiving  stolen  goods. 

A  is  charged  with  attempting  to  obtain  money  by  false  pre- 
tences, by  trying  to  pledge  to  B  a  worthless  ring  as  a  diamond 
ring. 

The  fact  that  two  days  before  A  tried,  on  two  separate  occa- 
sions, to  obtain  money  from  C  and  D  respectively,  by  a  similar 
assertion  as  to  the  same  or  a  similar  ring,  and  that  on  another 
occasion  on  the  same  day  he  obtained  a  sum  of  money  from  E  by 
pledging  as  a  gold  chain  a  chain  which  was  only  gilt,  are  deemed 
to  be  relevant,  as  showing  his  knowledge  of  the  quality  of  the 
ring.  R.  v.  Francis  (1874),  L.  R.  2  C.  C.  R.  128.  The  case  of 
R.  V.  Cooper  (1875),  ^  Q-  B.  D.  (C.  C.  R.)  19,  is  similar  to 
R.  V.  Francis,  and  perhaps  stronger.     Stephen's  Dig.  Evid.  Art.  1  r. 

To  prove  a  conspiracy  to  defraud,  it  may  be  shown  that  goods 
bought  by  one  were  offered  for  sale  by  another  below  cost. 
Blum  V.   State,   94  Md.  375. 

Fo-gery. 

To  prove  guilty  knowledge,  it  is  permissible  to  prove  that  the 
accused  had  in  his  possession  about  the  same  time  other  forged 
instruments.  Bloomer  z'.  State,  48  Md.  521;  Bell  v.  State,  57 
Md.  108;  Bishop  V.  State,  55  Md.  138. 

Proof  of  other  forgeries  and  the  possession    of  other   forged 


154/^*  AMERICAN  NOTES. 

paper.  People  v.  Frank,  28  Cal.  507  ;  Boyd  v.  Boyd,  164  N.  Y. 
234  ;  Com.  V.  Miller,  3  Cush.  243  ;  State  v.  Prins,  113  Iowa,  72  ; 
Anson  v.  People,  14S  111.  494. 

To  prove  forgery,  practice  copies  made  by  the  supposed  forger 
are  relevant.  Penn.  Co.  for  Insurance  v.  Railroad  Co.,  153  Pa. 
160. 

To  prove  that  a  note  Was  raised  in  amount,  it  is  proper  to 
admit  a  caril  showing  practice  work  in  the  alteration  of  figures. 
Wheeler  v.   Ahlers,    189  Pa.    138. 

Ferjury. 

On  trial  for  perjury,  it  is  permissible  to  show  that  the  witness 
testified  to  immaterial  matters  falsely  for  the  purpose  of  showing 
intention  and  to  rebut  any  claim  of  mistake.  Dodge  v.  State, 
4  Zab.  456. 

Co  u  n  tcrf citing. 

"A  man  might  think  the  money  he  passed  was  good,  and  he 
might  be  mistaken  once  or  even  twice  ;  but  the  presumption  of 
mistake  lessens  with  every  repetition  of  the  act  of  passing  money 
really  counterfeit."     People  v.  Sharp,  107  N.  Y.  467. 

A  is  charged  with  uttering  on  the  12th  December,  1854,  a  coun- 
terfeit crownpiece,  knowing  it  to  be  counterfeit. 

The  facts  that  A  uttered  another  counterfeit  crownpiece  on  the 
nth  day  of  December,  1854,  and  a  counterfeit  shilling  on  the  4th 
January,  1855,  are  deemed  to  be  relevant  to  show  A's  knowledge 
that  the  crownpiece  uttered  on  the  1 2th  was  counterfeit.  R.  v. 
Forster  (1855),  Dear.  456  ;  and  see  R.  v.  Weeks  (1861),  L.  &  C. 
18  ;  Stephen's  Dig.  Evid.  hx\.  11. 

Possession  of  other  counterfeit  money  to  prove  intent  and  knowl- 
edge in  uttering.  State  v.  Hess,  5  Ohio,  9  ;  Com.  v.  Hall,  4  Allen, 
306. 

To  prove  scienter  and  intent  in  passing  counterfeit  money  other 
crimes  of  the  sort  are  admissible.  State  v.  Van  Houten,  Pen. 
672  ;  State  v.  Robinson,  i  Harr.  507. 

Other  utterances  of  counterfeit  money.  Stalker  v.  State,  9  Conn. 
341;  Com.  V.  Bigelow,  8  Mete.  235;  Com.  v.  Jackson,  132 
Mass.  18;  State  v.  McAllister,  24  Me.  139;  Griffin  v.  State,  14 
Ohio  St.  55. 


AMERICAN   NOTES.  154?'* 

Mutual  Disposition  in  Adultery. 

On  trial  for  adultery,  prior  acts  of  adultery  between  the  same 
parties  are  admissible  to  prove  their  mutual  disposition.  State  v. 
Jackson,  65  N.  J.  L.  62  ;  State  v.  Snover,  65  N.  J.  L.  289. 

Other  acts  of  adultery  and  other  improper  familiarities  may  be 
proved  to  show  an  adulterous  disposition.  "  When  adulterous 
disposition  is  shown  to  exist  between  the  parties  at  the  time  of  the 
alleged  act,  then  mere  opportunity,  with  comparatively  slight  cir- 
cumstances showing  guilt,  will  be  sufficient  to  justify  the  inference 
that  criminal  intercourse  has  actually  taken  place."  Thayer  v. 
Thayer,  101  Mass.  113;  State  v.  Bridgman,  49  Vt.  210;  People  v. 
Edwards,  73  Pac.  416;  Lamphere  v.  State,  114  Wis.  193. 

A  conviction  of  adultery  may  be  based  upon  evidence  of  an 
adulterous  disposition  between  the  parties,  and  that  they  were 
together  when  they  had  an  opportunity.  Monteith  v.  State,  114 
Wis.  828  ;  State  v.  Brink,  68  Vt.  659. 

And  an  adulterous  disposition  was  established  by  evidence  of 
prior  and  subsequent  intercourse.  State  v.  Moore  (Iowa),  88 
N.  W.  322  ;  State  v.  Snover,  65  N.  J.  L.  289  ;  Crane  v.  People, 
168  111.  395.     But  see  People  v.  Fowler,  104  Mich.  449. 

An  information  for  adultery  charged  a  single  act  of  adultery  in  a 
single  court.  Held^  that,  having  given  evidence  of  one  such  act, 
the  State  could  not  proceed  to  show  other  instances  of  the  same 
crime  committed  with  the  same  person  at  other  times  and  places. 
State  V.  Bates,  10  Conn.  373. 

Previous  Illegal  Sales  of  Liquors. 

In  a  prosecution  for  keeping  liquors  with  intent  to  sell  the  same, 
the  State  offered  evidence  of  sales  made  by  the  defendant  before 
the  date  of  the  alleged  offence.  Hehl^  that  it  was  admissible  on  the 
question  of  intent,  although  other  prosecutions  for  such  sales  were 
pending  against  him.     State  v.  Raymond,  24  Conn.  206. 

A  is  charged  with  illegally  keeping  liquors  for  sale.  The  fact 
that  nearly  three  months  prior  to  the  complaint  and  seizure  in 
question  A  had  been  convicted,  on  a  plea  of  nolo  contendere,  of 
illegally  keeping  liquors,  is  relevant  to  show  intent.  State  v. 
Plunkett,  64  Me.  534. 


1547 


*  AMERICAN   NOTES. 


Abortion. 


To  prove  intent,  where  the  defendant  is  charged  with  i)rociiring 
an  abortion,  he  may  be  shown  to  liave  operated  in  the  same  way 
on  other  occasions.  Com.  v.  Hohnes,  103  Mass.  440;  Com.  z-. 
Corkin,  136  Mass.  429. 

In  a  prosecution  for  causing  abortion,  proof  as  to  the  character 
of  the  house  where  it  occurred  is  admissible.  Hays  v.  State,  40 
Md.  633. 

Evidence  of  a  subsequent  attempt  to  cause  an  abortion  by  dif- 
ferent means  is  admissible  to  show  intent  on  the  fust  occasion. 
Lamb  v.  State,  66  Md.  285. 

Cotispiracy. 

Proof  of  a  combination  or  conspiracy  for  a  criminal  purpose  is 
not  often  made  by  direct,  open,  and  i)ositive  evidence,  but  more 
generally  and  more  naturally  by  proving  a  repetition  of  acts  of  a 
character  conducing  to  show  a  mutual  purpose.  In  such  cases  it 
is  seldom  true  that  any  one  act,  taken  by  itself,  can  be  detected  as 
tending  to  prove  a  combination,  but  when  it  is  seen  in  connection 
with  other  acts,  its  true  nature  may  be  discovered.  State  v. 
Spaulding,  19  Conn.  237.     See  also  Stalker  v.  State,  9  Conn.  341. 

Arso7i. 

Other  attempts  to  fire  the  same  building  are  admissible  to  nega- 
tive accident  or  negligence.  Com.  v.  McCarthy,  119  Mass.  355  ; 
Com.  V.  Bradford,  126  Mass.  42. 

A  is  accused  of  setting  fire  to  his  house  in  order  to  obtain  money 
for  which  it  is  insured.  The  fact  that  A  had  previously  lived  in 
two  other  houses  successively,  each  of  which  he  insured,  in  each  of 
which  a  fire  occurred,  and  that  after  each  of  those  fires  A  received 
payment  from  a  different  insurance  office,  are  deemed  to  be  rele- 
vant, as  tending  to  show  that  the  fires  were  not  accidental.  R.  v. 
Gray  (1866),  4  F.  &  F.  1102. 

"  I  acted  on  this  case  in  R.  v.  Stanley,  Liverpool  Summer  Assizes, 
1882,  but  I  greatly  doubt  its  authority.  The  objection  to  the 
admission  of  such  evidence  is  that  it  may  practically  involve  the 
trial  of  several  distinct  charges  at  once,  as  it  would  be  hard  to 
exclude  evidence  to  show  that  other  fires  were  accidental." 
Stephen's  Dig.  Evid.  Art.  12. 


AMERICAN  NOTES.  154'^* 

To  show  that  defendant  was  guilty  of  arson,  it  was  proved  that 
when  arrested  he  referred  to  the  arson  before  he  was  charged  with 
it.     Meeks  v.  State  (Ga.),  30  S.  E.  252. 

Defendants  were   shown  to  be  guilty  of  arson  by  prior  threats 

and  by  the  fact  that  they  removed  their  property  from  the  building 

shortly  before  the  fire.     People  v.  Smith,  55  N.  Y.  Supp.  932,  162 

N.  Y.  520. 

Poisoning  Cases. 

Where  the  defendant  is  charged  with  murder  by  poisoning,  other 
attempts  to  kill  or  to  poison  the  deceased,  and  other  murders  by 
poisoning,  may  be  proved  to  show  intent  and  to  negative  mistake. 
State  V.  Smith,  102  Iowa,  656;  Zoldoske  v.  State,  82  Wis.  580; 
People  V.  Thacker,  108  Mich.  652  ;  Com.  v.  Robinson,  146  Mass. 

571- 

The  question  is,  whether  the  administration  of  poison  to  A,  by 
Z,  his  wife,  in  September,  1848,  was  accidental  or  intentional. 
The  facts  that  B,  C,  and  D  (A's  three  sons)  had  the  same  poison 
administered  to  them  in  December,  1848,  March,  1849,  and  April, 
1849,  and  that  the  meals  of  all  four  were  prepared  by  Z,  are  deemed 
to  be  relevant,  though  Z  was  indicted  separately  for  murdering  A, 
B,  and  C,  and  attempting  to  murder  D.  R.  v.  Geering  (1849), 
18  L.  J.  M.  C.  215  ;  Stephen's  Dig.  Evid.  Art.  12, 

"  If  a  person  were  charged  with  having  wilfully  poisoned  another, 
and  it  were  a  question  whether  he  knew  a  certain  white  powder  to 
be  poison,  evidence  would  be  admissible  to  show  that  he  knew 
what  the  powder  was,  because  he  had  administered  it  to  another 
person  who  had  died."     R.  v.  Dossett,  2  C.  &  K.  307. 

Where  one  is  accused  of  killing  another,  though  not  by  poison, 
it  may  be  shown  that  he  purchased  poison  and  took  it  to  the  house 
of  the  deceased.  Such  evidence  is  relevant  as  showing  an  inten- 
tion to  murder.     Mobley  v.  State,  41  Fla.  621. 

Actions  for  Crim.   Con. 

In  action  for  crim.  con.  the  defendant  may  be  asked  on  cross- 
examination  as  to  intercourse  with  plaintiffs  wife  prior  to  her 
marriage.     Foulks  v.  Archer,  31  N.  J.  L.  58. 

In  action  for  crim.  con.,  after  giving  evidence  of  adultery  prior 
to  separation  subsequent  adultery  may  be  proved.  Sherwood  v. 
Titman,  55  Pa.  77. 


154/*  AMERICAN  NOTES. 

Existence  of  System  to  Show  Intent  or  Motive. 

System  of  selling  liquor  by  seeming  to  give  it  away  admitted  to 
prove  intent.     Archer  v.  State,  45  Md.  n- 

The  defendant,  charged  with  murder,  was  shown  to  have  pre- 
tended to  be  a  medium  and  to  have  induced  the  deceased  to  wear 
a  belt  with  gold  coins  in  it  to  develop  power,  and  that  the  defend- 
ant had  worked  a  similar  game  on  others  and  secured  this  gold  by 
dexterous  fingers.      People  v.  Archer  (Mich.),  86  N.  W.  140. 

Proof  of  otlier  embezzlement  to  show  system  and  fraudulent 
intent.  People  v.  Hawkins,  106  Mich.  479  ;  Com.  v.  Tuckerman, 
10  Gray,  173. 

Prior  Attempts. 

To  prove  an  assault  with  intent  to  kill,  the  intent  may  be  shown 
by  evidence  of  prior  attempts  (State  v.  Merkley,  74  Iowa,  695  ; 
Lawrence  7'.  State,  84  Ala.  424;  Stater.  Nugent,  71  Mo.  136), 
even  though  the  attempt  was  made  in  a  different  manner  (State 
V.  Patza,  3  La.  Ann.  512),  and  so  an  attempt  to  murder  may  be 
shown  by  proof  of  prior  attempts.  State  v.  Nugent,  71  Mo.  136  ; 
People  V.  Jones,  99  N.  Y.  667  ;  Nicholas  v.  Com.,  91  Va.  741. 

It  is  competent  for  the  State  to  prove  previous  assaults  by  the 
defendant  upon  the  deceased,  or  previous  attempts  to  take  his  life, 
though  not  by  the  same  means.  Painter  v.  People,  147  111.  444  ; 
Williams  v.  State,  64  Md.  384  ;  Com.  v.  Crossmire,  156  Pa.  304. 

On  trial  of  defendant  for  the  murder  of  an  officer,  it  may  be 
shown  that  he  had  already  tried  to  kill  another  officer  who  was 
trying  to  arrest  him,  to  show  intention  to  kill  any  officer  making 
such  an  attempt.     People  v.  Coughlin,  13  Utah,  58. 

On  trial  for  murder  of  a  wife  by  setting  fire  to  her  dress,  it  may 
be  shown  that  defendant  at  another  time  set  fire  to  her  dress. 
Com.  V.  Birriolo,  197  Pa.  371. 

Prepai-ations  a7id  Opportu7iify  for.  the  Co7nviissio7i  of  C7-i7)ie. 

Preparation.  —  Acts  of  preparation  may  be  pro\'ed.  Com.  v. 
Choate,  105  Mass.  451;  Com.  v.  Blair,  126  Mass.  40;  Com. 
V.  Robinson,  146  Mass.  571,  16  N.  E.  452  ;  People  v.  Hope,  62 
Cal.  291  ;  Spies  v.  People,  122  111.  i  ;  McManus  v.  Com.,  91   Pa. 

57- 


AMERICAN   NOTES.  I  54  W* 

Statements  in  preparation  for  an  act  are  admissible  with  proof  of 
the  act.      Hunter  v.  State,  40  N.  J.  L.  538. 

A  proposition  made  by  defendant  to  take  an  unfrequented  path 
is  admissible  as  showing  preparation  to  commit  a  crime  ;  it  may  be 
shown  also  that  defendant  had  a  pistol.     Garlitz  v.  State,  71  Md. 

293- 

To  prove  defendant  guilty  of  adultery,  it  may  be  shown  that  he 

procured  anotlier  to  find  out  if  the  woman's  husband  was  at  home. 
State  V.  Green,  Kirby  (Conn.),  89. 

It  may  be  shown  that  the  defendant  borrowed  a  knife  just  before 
the  act  in  which  that  knife  was  used,  to  show  preparation.  Finch 
V.  State,  81  Ala.  41. 

Where  defendant  was  accused  of  stabbing  another  it  was  shown 
that  he  had  a  knife  sharpened  prior  to  the  act  and  had  inquired  as 
to  the  location  of  the  heart.     Walsh  v.  People,  88  N.  Y.  462. 

J  Possessiofi  of  Instruments. 

Where  the  defendant  was  charged  with  arson,  and  it  was  shown 
that  the  fire  in  question  had  been  started  by  means  of  an  ingenious 
and  peculiarly  constructed  fire-box,  evidence  was  admitted  to  show 
that  the  defendant  had  had  in  his  possession  prior  thereto  a  sim- 
ilar box  used  for  a  similar  purpose,  "  to  show  that  he  possessed  the 
requisite  skill,  materials,  tools,  and  opportunity''  to  have  made  the 
box  in  question.     Com.  v.  Choate,  105  Mass.  451. 

Homicide  Cases. 

The  defendant  may  be  shown  to  have  armed  himself  with  a 
knife  on  the  morning  of  the  homicide  to  show  his  intent.  Walsh 
V.  People,  88  N.  Y.  458. 

Where  deceased  was  killed  by  a  stab  in  the  heart,  the  defend- 
ant may  be  shown  to  have  had  a  knife,  although  no  one  saw  the 
knife  at  the  time  of  the  homicide.     People  v.  Rogers,  18  N.  Y.  9. 

It  may  be  shown  that  the  defendant  borrowed  a  knife  in  prep- 
aration for  expected  trouble,  when  he  was  charged  with  killing 
deceased  with  a  knife.     Finch  v.  State,  81  Ala.  41. 

The  defendant,  accused  of  homicide,  may  be  shown  to  have 
purchased  a  gun  and  bullets  for  the  purpose  of  shooting  the 
deceased.     Moon  v.  State,  68  Ga.  6S7  ;  Young  v.  Com.  (Ky.),  29 


154  «*  AMERICAN  NOTES. 

S.  W.  334  ;  State  v.  Doherty,  72  Vt.  381  ;  State  v.  Rider,  95  Mo. 
474  ;  People  v.  Scott,  153  N.  Y.  40. 

To  prove  that  the  defendant  was  guilty  of  murder,  it  may  be 
shown  that  he  purchased  a  gun  and  practised  shooting  before  the 
act  was  committed.  Boiling  v.  State,  54  Ark.  588.  People  v. 
McGuire,  135  N.  Y.  639. 

The  defendant  may  be  shown  to  have  had  a  weapon  with  which 
certain  wounds  could  have  been  inflicted.  People  v.  McDowell, 
64  Cal.  467  ;  Merrick  v.  State,  63  Ind.  327  ;  State  v.  McKinney, 
31  Kan.  570. 

That  the  accused  obtained  the  instruments  with  wliich  the  crime 
was  committed  may  be  jjroved.  Com.  v.  Roach,  108  Mass.  289; 
Com.  V.  Blair,  126  Mass.  40. 

To  prove  the  accused  guilty  of  sinking  a  boat,  it  may  be  shown 
that  he  had  an  auger  fitting  a  hole  made  in  the  bottom  of  the 
boat.     Nicholas  v.  Com.,  91  Va.  741. 

Possession  of  Poison. 

The  defendant,  charged  with  poisoning  his  wife,  may  be  shown 
to  have  obtained  arsenic  to  kill  rats,  and  that  when  asked  where  he 
got  it  he  replied,  "  It  is  none  of  your  business."'  State  v.  Hinkle, 
6  Iowa,  380. 

Where  defendant  is  charged  with  mixing  arsenic  with  food,  the 
previous  purchase  and  possession  of  arsenic  may  be  proved. 
Com.  V.  Hobbs,  140  Mass.  443.  And  so  where  the  defendant  is 
charged  with  murder  by  strychnine  poisoning.  State  v.  Cole,  94 
N.  C.  958. 

Burglar's   Tools. 

Where  defendant  was  shown  to  have  had  possession  of  goods 
taken  during  a  burglary,  and  claimed  to  have  bought  them,  the 
State  may  show  that  he  had  burglar's  tools  in  his  possession,  though 
it  was  a  month  after  the  crime.     Williams  v.  People,  196  111.  173. 

Possession  by  the  defendant  several  months  before  a  safe-break- 
ing of  percussion  caps  such  as  were  used  in  the  crime,  may  be 
proved.     State  v.  Wayne,  62  Kan.  636. 

Where  chloroform  was  used  in  a  burglary,  it  may  be  shown  that 
the  defendant  possessed  chloroform.  Miller  v.  State  (Tex.),  50 
S.  W.  704. 


AMERICAN   NOTES.  154^* 

Prior  possession  of  burglar's  tools  is  admissible  as  a  fact  to  show 
that  the  defendant  committed  a  burglary.  State  v.  Franks,  64 
Iowa,  39  ;  State  v.  Wayne,  62  Kan.  636. 

Insiruvienis  to  Produce  Abortion. 

Where  a  defendant  was  accused  of  procuring  an  abortion,  it 
was  allowed  to  be  shown  that  he  had  instruments  that  could  be 
used  for  that  })urpose.  Com.  v.  Brown,  121  Mass.  71  ;  People  v. 
Sessions,  58  Mich.  594. 

Instruments  to   Commit  Arson, 

Possession  of  a  jug  which  was  used  in  setting  fire  to  a  building 
with  oil  is  admissible.     Thomas  v.  State,  107  Ala.  13. 

Where  a  fire  was  started  with  oil  put  into  auger  holes,  the  State 
may  show  that  there  was  a  brace  in  the  house  to  show  that  accused 
had  the  means  at  hand.      People  v.  Bishop,  134  Cal.  682. 

Where  one  was  accused  of  arson,  it  was  allowed  to  be  shown 
that  the  defentlant  had  in  his  possession  a  box  with  inflammable 
materials  and  a  candle,  and  that  the  fire  in  question  was  set  with  a 
similar  box  and  candle.     Com.  v.  Choate,  105  Mass.  451. 

Instruments   Used  in  Forgery  and  Coufiter/eiting. 

To  prove  alteration  of  a  check,  it  may  be  shown  that  defend- 
ant had  materials  which  would  remove  ink.  People  v.  Brother- 
ton,  47  Cal.  402. 

Possession  of  tools  used  for  forging  banknotes  is  admissible. 
R.  V.  Ball,  I  Camp.  324. 

To  prove  the  defendant  guilty  of  counterfeiting,  it  maybe  shown 
that  he  had  instruments  adapted  to  the  business.  U.  S.  v.  Burns, 
5  McLean,  2^. 

Opportunity. 

There  can  be  no  doubt  that  opportunity  to  commit  a  crime,  or 
the  mere  physical  presence  of  the  accused  in  the  neighborhood,  is 
relevant  to  show  that  he  may  be  the  guilty  party.  He  may  of 
course  show  that  others  had  equal  opportunity.  Proof  of  oppor- 
tunity would,  unsupported,  have  very  little  weight. 

In  State  7'.  Wentworth,  37  N.  H.  196,  where  defendants  were 
accused  of  putting  stones  upon  a  railroad  track,  it  was  allowed  to 
be  shown  that  they  had  within  two  hours,  and  not  far  away,  placed 


154/'*  AMERICAN   NOTES. 

ron  rails  on  the  track,  for  the  purpose  of  showing  that  tlicy  had 
the  opportunity  of  doing  the  act  charged. 

One  charged  with  homicide  may  be  shown  to  have  known  of 
a  letter  received  by  the  deceased,  calling  him  past  the. place  where 
he  was  killed  ;  and  to  prove  such  knowledge  on  the  part  of  the  de- 
fendant, his  conversations  since  the  crime  are  admissible.  State 
V.  Seymour,  94  Iowa,  699. 

It  may  be  shown  that  the  defendant  had  an  opportunity  to  com- 
mit the  crime  in  question,  and  it  need  not  be  shown  that  the  de- 
fendant was  the  only  person  having  such  opportunity.  Terr.  v. 
DeGutman  (New  Mex.),  42  Pac.  68. 

The  defendant  was  shown  to  have  had  access  at  all  times  to  a 
bakery  adjoining  premises  where  a  burglary  was  committed,  and  it 
was  proved  by  marks  on  the  window  that  a  screw-driver  belonging 
in  the  bakery  had  been  used  to  open  a  window  in  a  partition  be- 
tween the  two  rooms.     State  v.  Marshall  (Iowa),  74  N.  W.  763. 

Burglary  of  watches.  Defendant  was  shown  to  have  known 
where  the  watches  were  kept.     State  v.  Fitzgerald,  72  Vt.  142. 

Presence  at  the  Place  of  a   Crime. 

Mere  presence  of  a  person  at  the  scene  of  a  crime  is  not  alone 
sufificient  as  a  basis  for  the  inference  that  he  assented  to  its  com- 
mission.    State  V.  Maloy,  44  Iowa,  104. 

One  may  be  convicted  of  a  crime  upon  circumstantial  evidence, 
though  there  is  no  proof  that  he  was  seen  near  the  place  of  its 
commission.     People  v.  Flynn,  73  Cal.  511. 

The  defendant's  presence  in  the  vicinity  of  the  crime,  his  oppor- 
tunity of  knowing  when  the  deceased  was  to  leave  a  certain  place, 
and  the  fact  that  the  defendant  was  not  customarily  in  that  vicinity, 
though  not  to  be  given  much  weight,  are  admissible  links  in  a  chain 
of  circumstantial  evidence.     Campbell  v.  State,  23  Ala.  44. 

Defendant  was  shown  to  have  been  present  at  the  time  of  the 
crime,  and  that  the  instrument  (a  broadaxe)  with  which  the  mur- 
der was  committed  was  in  the  house  prior  thereto.  Cicely  v.  State, 
13  Smedes  &  M-  (Miss.)  203. 

Strength  and  Ability  to   Commit  the   Crime. 

The  defendant  may  be  shown  to  have  had  a  peculiar  grip  whereby 
he  could  "shut  anybody's  wind  off,"  when  the  marks  on  the  de- 


AMERICAN  NOTES.  154^* 

ceased  could  have  been  made  by  such  a  grip.  Com,  -'.  Crossmire, 
156  Pa.  304. 

The  relative  strength  of  the  parties  to  a  struggle  may  be  shown, 
but  only  by  evidence  of  a  general  character  and  not  by  proof  of 
specific  acts,  particularly  acts  in  themselves  likely  to  prejudice  the 
defendant.     Wellar  v.  People,  30  Mich.  16. 

The  deceased  may  be  shown  to  have  been  old  and  feeble,  while 
the  defendant  is  young  and  strong.     Davidson  v.  State,  135  Ind. 

254- 

Where  one  is  charged  with  strangling  another,  evidence  that 
after  the  crime  he  showed  how  he  could  kill  by  strangling  is  admis- 
sible.    Moore  v.  State,  2  Ohio  St.  500. 

Evidence  that  defendant  had  a  loaded  revolver  proves  that  he 
had  the  "  present  ability "  to  do  the  act  threatened.  State  v. 
Sheerin,   12   Mont.  539. 

The  physical  strength  of  the  accused  is  admissible  to  show  that 
he  would  have  been  able  to  do  the  act.  Thiede  v.  Utah,  1 1  Utah, 
241,  139  U.  S.  510;  State  V.  Gushing,  17  Wash.  544. 

To  rebut  the  claim  of  self-defence  the  State  may  show  that  the 
deceased  was  small  and  weak  and  nearly  blind.  State  v.  Goddard, 
162  Mo.  198. 

To  show  that  the  defendant  had  capacity  and  opportunity  to 
put  two  large  stones  on  a  railroad  track,  it  may  be  shown  that  he 
very  shortly  before  put  iron  rails  on  the  track  nearby.  State  v. 
Wentworth,  37  N.  H.  196. 

Ability  and  Skill  of  the  Defendant. 

Where  the  defendant  was  charged  with  election  frauds  con- 
nected with  registration  lists,  it  may  be  shown  that  the  defendant 
was  in  conspiracy  with  others  to  do  the  acts  charged,  and  that  the 
defendant,  because  of  his  position  and  control  of  patronage,  was 
able  to  influence  and  to  coerce  the  others  involved.  People  v. 
McKane,   143  N.  Y.  455. 

One  charged  to  have  procured  goods  on  credit  with  intent  to 
defraud  may  be  shown  to  have  had  such  credit  in  the  community 
as  to  have  made  it  possible  for  him  to  obtain  the  credit  in  question. 
Gom.  V.  Eastman,  55  Mass.  (i  Gush.)  189. 

In  Webster's  trial  it  was  shown  that  the  body  of  Doctor  Parkman 
had  been  dissected  in  a  professional  manner,  and  that  the  defend- 


154^*  AMERICAN  NOTES. 

ant  was  a  professor  in  a  medical  school,  to  assist  in  identifying  him 
as  the  murderer.     Com.  r.  Webster,  5  Cush.  295. 

Similar  evidc-nce  was  held  admissil)lc  in  People  ?'.  Durrant,  116 
Cal.  I  79. 

Where  the  defendant  is  charged  with  altering  a  check,  it  may  be 
proved  tiiat  there  is  a  fluid  with  which  writing  may  be  removed, 
and  that  the  defendant  is  expert  in  its  use.  People  v.  Dole,  i2r 
Cal.  492,  68  Am.  St.  Rep.  50. 

But  in  State  v.  Hopkins,  50  Vt.  316,  where  the  defendant  was 
accused  of  forgery,  it  was  held  improper  to  show  that  he  had  skill 
in  imitating  the  signatures  of  others. 

Knowledge  of  Drugs. 

One  charged  with  procuring  an  abortion  may  be  shown  to  have 
had  knowledge  of  the  drugs  actually  used  in  the  case,  and  to  have 
advertised  that  he  was  able  to  produce  miscarriages.  Weed  v. 
People,  56  N.  Y.  62S. 

That  the  defendant  made  inquiries  as  to  the  use  of  drugs  in  pro- 
curing an  abortion  is  admissible  on  the  question  of  his  having 
procured  one.     Jackson  v.  Com.,   100  Ky.  239. 

Knowledge  of  Weapons. 

Where  a  boy  of  twelve  was  accused  of  shooting  another,  evidence 
is  admissible  to  show  his  knowledge  and  experience  as  to  firearms. 
State  V.  McDonald,  14  R.  I.  270. 

Preparatiojis  and  Predictio7is  of  Death. 

In  Nicholas  v.  Com.,  91  Va.  741,  where  defendant  was  charged 
with  causing  deceased's  death  by  drowning,  he  had  made  a  prior 
attempt  to  poison  the  deceased,  and  had  predicted  the  latter's  sud- 
den death  from  heart  disease.  There  were  three  large  holes  bored 
in  the  bottom  of  the  boat  where  the  defendant  sat,  and  they  were 
the  size  of  an  auger  possessed  by  the  defendant.  He  had  invited 
the  deceased  to  accompany  him  across  the  river  to  rob  a  bee  tree, 
knowing  that  the  deceased  could  not  swim. 

On  a  trial  for  the  murder  of  X,  it  was  shown  that  one  Y  had 
previously  been  killed,  and  the  defendant  remarked  that  the  one 
who  had  killed  Y  intended  to  kill  X  also.  People  v.  Evans,  41 
Pac.  444  (Cal ). 


AMERICAN   NOTES.  '  154-?* 

Predictions  of  a  Fire. 

Defendant  had  predicted  that  all  of  L's  buildings  would  burn, 
and  proof  was  admitted  that  the  dwelling  had  been  set  on  fire  to  show 
that  defendant  had  burned  the  barn.  State  v.  Hallock  (Vt.),  40 
Atl.si. 

A  prediction  that  a  third  person  was  about  to  set  fire  to  certain 
buildings  was  admitted  to  prove  that  defendant  committed  arson. 
State  V.  Gailor,  71  N.  C.  88. 

Receiit  Possession  of  the  Fruits  of  Crime. 

Possession  to  Prove  Larceny.  —  Possession  of  stolen  goods  is 
admissible  as  a  fact  tending  to  show  that  the  possessor  stole  them. 
"  The  law  is  that  if,  recently  after  the  commission  of  the  crime,  a 
person  is  found  in  possession  of  the  stolen  goods,  that  person  is 
called  upon  to  account  for  the  possession,  —  that  is,  to  give  an  ex- 
planation of  it  which  is  not  unreasonable  or  improbable.  The 
strength  of  the  presumption  which  arises  from  such  possession  is 
in  proportion  to  the  shortness  of  the  interval  which  has  elapsed. 
If  the  interval  has  been  only  an  hour  or  two,  not  half  a  day,  the 
presumption  is  so  strong  that  it  almost  amounts  to  proof,  because 
the  reasonable  inference  is  that  the  person  must  have  stolen  the 
property."     R.  v.  Exall,  4  F.  &  Y.  922. 

Where  there  has  been  a  larceny  of  money,  it  may  be  shown  that 
the  accused  had  possession  of  certain  specific  pieces,  if  they  can 
be  identified,  or  that  after  the  crime  he  had  plenty  of  money  while 
before  he  had  none.  Com.  v.  Mulrey,  170  Mass.  103;  Boston 
&  W.  R.  R.  Co.  V.  Dana,  i  Gray,  loi  ;  State  v.  Grebe,  17  Kan. 
458  ;  Gates  v.  People,  14  111.  433. 

The  possession  of  a  bottle  of  brandy  admitted  as  evidence  of 
an  intention  to  steal  it.     People  v.  Griswold,  64  Mich.  722. 

Where  the  defendant  is  charged  with  larceny  of  a  beef,  it  may 
be  shown  that  certain  bones  were  dug  up  on  his  premises  appear- 
ing to  be  the  bones  of  an  animal  about  the  size  of  the  one  stolen. 
Foster  v.  State,  56  S.  W.  (Tex.)  58. 

Possession  of  a   Part   Only. 

A  conviction  may  be  had  without  showing  that  all  the  property 
stolen  was  traced  to  the  possession  of  the  defendant.     If  it  is  shown 


154^*  AMERICAN   NOTES. 

tliat  he  liad  in  his  possession  even  a  very  small  portion  of  tlie 
stolen  goods,  this,  in  connection  with  otiicr  evidence,  may  convict 
him  of  having  taken  all.  State  v.  Owens,  79  Mo.  619;  Knicker- 
bocker T.  People,  43  N.  Y.  177. 

OtJicr  Property  Stolen  at  Same   Time. 

Possession  of  other  property  stolen  at  the  same  time  as  that 
alleged  in  the  indictment  may  be  i)roved.  State  v.  Wrand  (Iowa), 
78  N.  W.  788. 

To  Prove  Burglary. 

Possession  of  recently  stolen  goods  as  evidence  of  burglary. 
Considine  v.  U.  S.,  112  Fed.  342  ;  Boersh  v.  State  (Tex.),  62  S.  VV. 
1060;  People  V.  Brady,  133  Cal.  xx,  65  Pac.  823;  State  v.  Ryan 
(Iowa),  85  N.  W.  812  ;  Holland  v.  State,  112  Ga.  540;  Cook  v. 
State  (Miss.),  28  So.  833;  Robertson  v.  State  (Fla.),  24  So.  474; 
Jones  V.  State  (Ga.),  31  S.  E.  574;  People  v.  Sears,  119  Cal.  267  ; 
State  V.  Dale,  141  Mo.  284. 

Mere  possession  of  the  goods  held  insufificient  to  establish  that 
the  defendant  committed  a  burglary  unless  the  breaking  and  enter- 
ing are  also  proved.  Lester  v.  State  (Ga.),  32  S.  E.  335.  But  it 
may  be  sufficient  to  identify  the  defendant  as  the  one  who  did 
break  and  enter.     Hunter  v.  Com.  (Ky.),  48  S.  W.  1077. 

To  prove  burglary,  it  was  shown  that  defendant  had  possession 
of  some  of  the  stolen  property  three  days  after  the  crime.  State  v. 
Armstrong,  170  Mo.  406. 

A  joint  possession  of  goods  stolen  by  several  defendants  may 
be  proved  to  show  that  they  committed  burglary.  Robertson  v. 
State  (Fla.),  24  So.  474. 

Possession  of  a  key  fitting  the  lock  in  the  house  entered,  and 
defendant's  attempt  to  throw  it  away,  are  evidence  of  the  com- 
mission of  burglary.     Holland  v.  State,  112  Ga.  540. 

To  Prove  Robbery  and  Murder. 

Possession  of  money  of  the  same  kind  and  denomination  to  show 
robbery.     Musser  v.  State  (Ind.),  61  N.  E.  i. 

Where  a  man  was  killed  to  effect  robbery,  it  may  be  shown  that 
the  defendant  had  money  when  arrested,  even  though  the  money 
is  not  identified  as  having  belonged  to  the  deceased.  Chapman 
V.  State  (Tex.),  65  S.  W.  1098. 


AMERICAN   NOTES.  154'^'' 

"  Possession  of  the  fruits  of  crime,"  held  to  have  great  weight 
in  proving  a  murder,  where  a  murder  and  a  robbery  were  committed 
at  llie  same  time.     WiUiams  v.  Com.,  29  Pa.  102. 

To  Prove  Murder. 

In  the  case  of  People  v.  Durrant,  116  Cal.  179,  where  the  de- 
fendant was  charged  with  the  murder  of  a  young  lady,  it  was  shown 
that  lie  had  attempted  to  sell  to  a  pawnbroker  a  certain  ring  that 
had  been  worn  by  the  deceased,  and  that  later  this  ring  and  others, 
likewise  belonging  to  the  girl,  came  by  mail  to  the  girl's  aunt, 
wrapped  in  a  paper  bearing  names  written  in  the  defendant's 
handwriting. 

It  may  be  shown  that  prior  to  a  murder  tlie  defendant  had 
been  unable  to  pay  a  debt  of  §16,  but  the  next  day  ])aid  debts  of 
$116,  in  all,  and  that  the  deceased  had  when  killed  more  than 
$100.     Schneider  v.  State,  2  Ohio  Cir.  Ct.  R.  420. 

The  fact  that  the  defendant  pawned  a  watch  and  also  disposed 
of  certain  clothing,  all  of  which  had  belonged  to  the  deceased,  was 
admitted  to  prove  the  defendant  guilty  of  murder  in  Terr.  v. 
Bryson,  9  Mont.  32. 

In  State  v.  Jackson,  95  Mo.  623,  the  defendant  was  shown  to 
have  been  out  of  money  and  in  search  of  work,  while  the  deceased 
had  money.  After  the  time  of  the  murder  the  defendant  ceased 
to  hunt  work  and  had  plenty  of  money. 

To  convict  the  defendant  of  murder,  he  was  shown  to  have 
been  in  the  company  of  the  deceased  after  the  latter  had  just 
completed  some  remunerative  work,  that  later  he  was  alone  driv- 
ing two  teams  owned  by  the  deceased,  one  being  hitched  ahead 
of  the  other  by  means  of  a  rope  instead  of  the  usual  chain.  He 
also  had  several  hundred  dollars  in  his  possession.  He  told  a 
story  of  having  bought  the  teams  of  the  deceased  and  then  de- 
parted. The  body  of  deceased  was  found  in  a  river  where  they 
had  been,  with  the  wagon  chain  wound  about  the  neck  and  mortal 
wounds  on  the  body.  The  evidence  was  held  sufficient  to  sustain 
a  conviction.     State  v.  Foster,  91  Iowa,  164. 

To  connect  defendant  with  a  murder,  it  was  shown  that  the  de- 
ceased had  sold  cattle  prior  to  the  murder,  and  that  after  the 
event  the  defendant  spent  much  money  the  possession  of  which  he 
did  not  account  for.     Lancaster  v.  State,  36  Tex.  Cr.  R.  16. 


154'^*  AMERICAN   NOTES. 

The  defendant  may  be  shown  to  have  had  the  murdered  man's 
wagon,  clothing,  pocket-book,  and  other  property,  after  the  crime. 
State  V.  Gartrell,  171  Mo.  489. 

The  State  may  show  that  certain  property  of  the  deceased  was 
found  in  the  trunk  of  the  defendant  who  was  accused  of  the  mur- 
der.    Morris  v.  State,  30  Tex.  App.  95. 

Possession  of  two  watches  previously  carried  by  the  deceased 
admitted  as  evidence  that  defendant  was  guilty  of  the  homicide. 
Lindsay  v.  People,  67  Barb.  548,  afifirmed  63  N.  Y.  143. 

It  may  be  show'n  that  the  defendant  had  no  money  prior  to  the 
date  of  a  liomicide,  and  that  afterwards  he  had  money  similar  in 
kind  and  amount  to  that  in  the  former  jjosscssion  of  the  deceased. 
Gates  V.  People,  14  111.  433  ;  State  v.  Davis,  87  N.  C  514  (coins 
of  an  early  date). 

In  Betts  V.  State,  66  Ga.  508,  it  was  shown  that  the  deceased 
had  had  four  $20  bills  and  some  other  paper  money,  and  that  tiie 
defendant,  charged  with  murder,  attempted  to  conceal  such  bills 
and  other  money. 

To  prove  that  the  defendant  was  guilty  of  homicide,  it  was  shown 
that  the  deceased  had  two  gold  bars,  that  the  defendant  was  just 
out  of  prison  and  had  no  money,  and  that  he  sold  two  gold  bars 
shortly  after  the  event.  It  was  not  shown  that  the  gold  bars  were 
the  same,  but  the  defendant  was  convicted.  People  v.  Collins, 
64  Cal.  293. 

Fossession   May  Make  a    Priina   Facie  Case. 

Recent  possession  of  the  stolen  goods,  when  unexplained,  has 
been  held  sufficient  to  warrant  a  conviction.  Lehman  v.  State, 
18  Tex.  Crim.  174;  Roberts  v.  State,  17  Tex.  Crim.  82.  But  in 
State  V.  Reese,  27  W.  Va.  375,  unexplained  possession  was  held 
not  to  make  out  a  prima  facie  case.  The  contrary  has  frequently 
been  held.  Smith  v.  People,  103  111.  82  ;  Comfort  v.  People, 
54  111.  404;  State  V.  Jennings,  81  Mo.  165  ;  State  v.  Kennedy, 
88  Mo.  341. 

The  bare  fact  of  possession  is  generally  said  to  be  insufficient 
evidence  upon  which  to  convict,  but  with  other  circumstances  of 
suspicion  it  may  make  6ut  vi.  prima  facie  case.  People  v.  Antonio, 
27  Cal.  404;  Moreno  v.  State,  24  Tex.  Crim.  401. 

Two  men,  charged  with  the  murder  of  an  express  messenger, 


AMERICAN   NOTES.  I54t£/* 

$2  1,000  having  been  stolen  from  the  car,  were  shown  to  have  had 
great  sums  of  money  after  the  crime,  some  $50  and  $100  bills 
being  itlentified.  Their  only  explanation  was  that  they  had  re- 
ceived money  from  relatives,  and  they  were  convicted.  Watt  v. 
People,  126  111.  9,  I  L.  R.  A.  403. 

Possession  of  a  sack  of  malt  within  an  hour  after  a  burglary,  and 
failure  to  explain  such  possession,  held  sufficient  to  convict. 
People  V.  Joy  (Cal.),  66  Pac.  964. 

It  is  sufficient  evidence  to  sustain  a  conviction  for  larceny  that 
defendant  was  found  skinning  another  s  hog,  newly  killed,  and  that 
when  discovered  he  ran  away  (Walker  zj.  State,  3  Tex.  App.  70)  ; 
or  that  defendant  was  discovered  with  a  box  of  tobacco  and  ran 
with  it  until  caught.     Carreker  v.  State,  92  Gx.  47  [. 

Possession  Raises  a  Presumption  of  Fact. 

The  presumption  arising  from  possession  of  stolen  goods  is  gen- 
erally held  to  be  one  of  fact,  to  be  drawn  by  the  jury  alone  from  the 
circumstances  of  the  case.  Smith  v.  State,  58  Ind.  341  ;  Snow- 
den  7'.  State,  62  Miss.  100;  Lockhart  v.  State,  29  Tex.  Crim.  35  ; 
Dillon  V.  People,  i  Hun,  670:  State  v.  Richart,  57  Iowa,  245; 
State  V.  Hodge,  50  N.  H.  510;  Graves  v.  State,  12  Wis.  591. 
But  in  State  v.  Kelly,  73  Mo.  60S,  the  presumption  is  said  to  be 
one  of  law. 

Possession  by  Another  than  the  Defendant. 

Defendant  was  accused  of  burglary,  and  with  C  escaped  from 
jail.  Later  C  was  found  in  possession  of  property  stolen  at  the 
place  of  the  burglary,  at  which  time  he  himself  was  in  jail.  His 
possession  was  admitted  as  evidence  against  defendant.  Riding 
V.  State  (Tex.),  50  S.  W.  69S. 

Possession  by  the  defendant's  son  of  the  hide  of  a  heifer  alleged 
to  have  been  stolen,  and  the  selling  of  fresh  meat  by  the  defendant, 
were  admitted  to  show  that  defendant  stole  the  heifer.  Brown  v. 
State,  34  Tex.  Cr.  R.  150,  29  S.  W.  772. 

Leftgth  of  Time  Elapsed. 

The  fact  that  the  defendant  had  possession  of  goods  stolen  may 
be  proved,  notwithstanding  the  length  of  time  elapsed,  that  cir- 
cumstance affecting  the  weight  and  not  the  competency.     Lindsay 


154-^'*  AMERICAN   NOTES. 

7'.  People,  63  N.  Y.  243;  State  r-.  Rights,  82  N.  C.  675  ;  Mooncr 
7'.  State,  24  Tex.  Crim.  401. 

Wlicre  the  goods  found  in  the  possession  of  tlie  defendant  are 
of  a  sort  easily  transferred  from  iiand  to  hand,  as  banknotes,  the 
presumption  may  be  very  weak,  even  though  the  time  be  short 
(Warren  7'.  State,  i  Iowa,  106;  Snowden  z:  State,  62  Miss.  100; 
Slate  7:  Castor,  93  Mo.  242);  while  if  the  property  be  bulky  and 
unusual  in  nature,  as  a  statue,  the  presumption  woukl  be  strong, 
though  the  time  be  long. 

Wheu  one  is  found  in  possession  of  stolen  goods,  the  presump- 
tion to  be  drawn  therefrom  is  strong  or  weak  in  proportion  to  the 
length  of  time  elapsed  since  the  crime.  White  v.  State,  72  Ala. 
195  ;  Gabbick  ?'.  People,  40  Mich.  292  ;  Slate  7'.  Floyd,  15  Mo. 
349  ;  State  v.  While,  89  N.  C.  462  ;  Pollard  v.  State  (Tex.),  26 
S.  W.  70. 

False  Explanations. 

An  improbable  or  false  explanation  of  the  possession  of  stolen 
goods  strengthens  the  presumption  of  guilt;  and  so,  also,  if  the 
defendant  gives  conflicting  explanations  (Enbanks  v.  State,  82  Ga. 
62;  State  z/.  Rodman,  62  Ga.  456;  State  v.  En,  10  Nev.  277  ; 
Towle  V.  Slate,  47  Wis.  545)  ;  as  when  the  defendant  claims  he 
bought  them  at  auction  and  there  has  been  no  auction.  State 
v.  Donovan  (Mo.),  26  S.  W.  340. 

The  fact  that  the  defendant  made  several  explanations  as  to  his 
possession  of  property  is  admissible  to  prove  he  stole  the  property. 
State  V.  En.,  10  Nev.  277. 

Unexplained  Appearances  of  Suspicion  and  False  Explanations 

of  Them. 

Personal  Appearance  of  Accused. 

The  appearance  of  the  accused  after  a  homicide,  and  that  he 
looked  terror-stricken  and  wild,  may  be  proved  (Cottell  v.  State, 
5  Circ.  Dec.  (Ohio)  472,  12  Ohio  Circ.  Ct.  467);  so  his  em- 
barrassment may  be  shown.     Moore  v.  State,  2  Ohio  St.  500. 

There  were  scratches  on  the  person  of  the  defendant,  and  he 
accounted  for  them  by  saying  that  he  had  been  put  off  of  a  certain 
train.  It  was  proved  that  no  one  had  been  put  off  of  that  train. 
State  V.  Lucey  (Mont.),  61  Pac.  994. 


AMERICAN   NOTES.  1 54 J* 

Appearance  of  Clothing. 

It  may  be  shown  that  defendant's  shirt  was  found  wet  with 
sweat,  where  he  is  charged  with  murder,  and  if  guilty,  he  must  have 
run  home  three  miles.     Baines  v.  State  (Tex.),  66  S.  W.  847. 

Where  one  is  accused  of  setting  a  fire  with  kerosene,  it  may  be 
shown  that  there  were  kerosene  stains  on  his  shirt.  State  v.  Kings- 
bury, 58  Me.  238. 

Where  the  defendant  was  charged  with  murder  and  robbery,  it 
was  shown  that  some  time  after  the  murder  he  had  pawned  jewels 
belonging  to  the  deceased,  and  told  various  untrue  stories  as  to 
how  he  got  them.  He  shaved  his  moustache  shortly  after  the 
murder,  and  a  suit  of  his  clothes  was  found  with  blood  on  them. 
He  was  convicted.     People  v.  Neufeld,  165  N.  Y.  43. 

Suspicious   Conduct. 

Where  the  accused  was  charged  with  causing  the  death  of 
deceased  by  drowning,  it  was  shown  that  he  refused  to  assist  in  the 
investigation  of  the  drowning  until  threatened  with  arrest,  and 
otherwise  behaved  suspiciously.     Nicholas  v.  Com.,   91   Va.   741. 

Recently  Fired  Gun. 

A  shotgun  found  in  the  defendant's  house  showed  that  one 
barrel  had  been  recently  discharged.  Wlien  asked  where  he  was 
when  it  was  fired,  he  said  "  in  bed."  But  it  was  shown  that  there 
were  no  traces  whatever  of  a  shot  having  been  fired  in  his  room. 
Williams  v.  State  (Ark.),  16  S.  W.  816. 

Failure  to  Explain  Suspicious  Circumstances. 

"  Where  probable  proof  is  brought  of  a  state  of  facts  tending  to 
criminate  the  accused,  the  absence  of  evidence  tending  to  a  con- 
trary conclusion  is  to  be  considered,  —  though  not  alone  entitled 
to  much  weight,  because  the  burden  of  proof  lies  on  the  accuser 
to  make  out  the  whole  case  by  substantive  evidence.  But  whea 
pretty  stringent  proof  of  circumstances  is  produced,  tending  to 
support  the  charge,  and  it  is  apparent  that  the  accused  is  so  sit- 
uated that  he  could  offer  evidence  of  all  the  facts  and  circum- 
stances, as  they  existed,  and  show,  if  such  was  the  truth,  that  the 
suspicious  circumstances  can  be  accounted  for  consistently  with 


1 54-*  AMERICAN  NOTES. 

his  innocence,  and  he  fails  to  offer  such  proof,  the  natural  conclu- 
sion is,  that  the  proof,  if  produced,  instead  of  rebutting,  would 
tend  to  sustain  the  charge.  But  this  is  to  be  cautiously  applied, 
and  only  in  cases  where  it  is  manifest  that  proofs  are  in  the  power 
of  the  accused,  not  accessible  to  the  prosecution."  Com.  z'.  Web- 
ster, 5  Cush.  295,  316. 

"There  is  an  absence  of  all  effort  on  the  part  of  the  prisoner  to 
explain  two  circumstances  in  the  early  part  of  the  transaction 
which  have  some  bearing  in  the  case.  The  first  is  the  failure  to 
show  where  he  was,  from  the  time  he  crossed  the  river  until  he 
overtook  Sandifer  and  Riddle  at  sunset.  'I'he  other  is,  that  he  did 
not  show  whether  he  went  to  Newsom's  to  supper,  as  he  said  he 
intended  to  do.  These  are  considerations  of  great  force  against 
him."     McCann  v.  State.  13  Smedes  &  M.  (Miss.)  471,  493. 

False  Explanations. 

Misrepresentation  of  the  facts  and  concealment  were  held  suffi- 
cient to  convict  the  defendant  of  an  attempt  to  murder  with  a 
bomb,  where  the  bomb  had  exploded  and  wounded  the  defendant 
himself,  in  Jambor  v.  Slate,  75  Wis.  664. 

Contradictory  stories  shown  to  be  false,  as  to  what  two  defend- 
ants had  done  with  a  certain  child,  convicted  them  both  of  murder. 
And  V.  State,  36  Tex.  Cr.  R.  76. 

False  statements  as  to  what  defendant  did  with  his  child  are 
admissible  to  prove  its  murder.     Com.  v.  Johnson,  162  Pa.  63. 

It  was  shown  in  the  case  of  People  v.  Sliney,  137  N.  Y.  570,  that 
the  deceased  was  killed  in  his  butcher  shop  with  a  cleaver.  The 
defendant  was  seen  there  shortly  before,  holding  a  cleaver.  The 
deceased's  boy  had  been  induced  to  leave  by  a  forged  note-  from 
a  priest,  written  in  red  ink.  The  defendant  had  red  ink  stains  on 
his  hands.  At  one  time  he  admitted  writing  the  note,  and  at  an- 
other time  he  denied  it.  At  one  time  he  admitted  killing  the  de- 
ceased in  self-defence,  and  at  another  time  accused  the  brother  of 
the  deceased  with  the  crime.  The  brother  was  shown  to  have 
been  elsewhere  at  the  time.     The  verdict  was  murder  in  the  first 

degree. 

False  Explanations  of  Blood  Stains. 

Where  the  defendant  explained  certain  blood  stains  on  his  person 
by  saying  that  it  was  blood  from  a  squirrel  he  had  dressed,  the 


AMERICAN   NOTES.  154^** 

prosecution  showed  that  tlie  squirrel  in  question  had  been  given 
to  him  already  dressed.     Brown  v.  State,  32  Tex.  Cr.  R.  1 19. 

False  Explanations  in  Larceny. 

Where  defendant  had  packed  up  certain  goods  of  his  employer 
and  sent  them  by  express  to  another  city,  and  gave  false  explana- 
tions of  his  doing  so,  and  it  was  shown  that  he  had  shipped  other 
boxes  in  a  similar  manner,  he  was  properly  convicted  of  larceny. 
May  V.  State,  38  Neb.  211. 

The  defendant  was  convicted  of  the  larceny  of  a  hog  on  evi- 
dences of  a  bloody  trail  to  accused's  yard,  a  pool  of  blood  there 
covered  up,  hair  from  a  hog  about  the  premises  partly  concealed, 
and  the  defendant's  false  explanation  that  the  hair  came  from  a 
chimney.     Harris  v.  State,  62  Ga.  337. 

Contradictory  stories  to  explain  the  possession  of  a  stolen  dress 
suit  and  a  silk  doily.     Williams  v.  People,  ig6  111.  173. 

This  Evidence  to  be   Carefully  Scrutinized. 

That  suspicious  conduct  is  to  be  scrutinized  with  care  is  shown 
in  the  case  of  Miller  v.  Terr.,  3  Wash.  T.  554,  19  Pac.  50.  The 
defendant  was  an  ignorant  man,  and  was  charged  with  murder. 
A  motive,  quite  inadequate,  existed.  When  arrested,  he  dis- 
played agitation,  and  he  appeared  much  moved  wlien  taken  by 
the  sheriff  to  the  spot  where  the  murder  occurred.  He  was 
brought  before  the  dead  bodies  and  asked  by  the  sheriff,  "  How 
do  you  feel  in  the  presence  of  the  evidence  of  your  hellish  crime  ?  " 
He  breathed  deeply,  looked  away,  and  said  nothing.  A  con- 
viction was  set  aside  because  a  well-established  alibi  showed  it  to 
have  been  practically  impossible  for  him  to  have  been  on  the  spot 
when  the  killing  was  done. 

Ignorance  of  the  Defendant  to  be   Considered. 

'•  In  cases  depending  upon  indirect  testimony,  where  the  facts 
or  circumstances  established  by  direct  proof  point  strongly  to  the 
guilt  of  the  accused,  his  relation  of  the  occurrence  is  frequently  a 
matter  of  great  importance.  His  statement,  if  true,  may  explain 
facts  of  a  doubtful  character,  which  otherwise  would  tend  strongly 
to  the  conclusion  of  his  guilt,  and  if  it  be  reasonable  and  consistent 
in  itself,  should  always  have  weight  with  the  jury.     On  the  other 


I54<5**  AMERICAN   NOTES. 

hand,  if  it   be   unreasonable  or  contradictory  and   proved  to  be' 
false,  it  must,  upon  acknowledged  jjrinciples,  increase  the  presump- 
tion of  his  guilt. 

*'  In  the  case  at  bar,  the  evidence,  strong  if  not  conclusive,  de- 
rives great  weight  from  the  strange  account  which  she  gave  of 
the  occurrence  from  the  contradictory  statements,  and  from  the 
fact  that  her  relation,  in  part  at  least,  is  proved  to  be  false.  Ig- 
norant or  weak-minded  persons,  innocent  of  the  charge,  when 
opposed  by  circumstances  that  question  their  iimoccnce,  not 
knowing  that  a  true  account  of  the  matter  would  be  their  surest 
protection,  frequently  resort  to  prevarication  and  falsehood  with 
a  hope  of  delivery.  But  in  the  case  under  examination  there  is 
good  reason  to  believe  that  the  false  and  contradictory  state- 
ments of  the  prisoner  were  the  result  of  the  guilt  in  which  she  was 
involved."     Cicely  v.  State,  13  Smedes  &  M.  (Miss.)  203,  223. 

Weight  of  Indirect  Confessional  FA'idence. 

In  the  case  of  McCann  v.  State,  13  Smedes  &  M.  (Miss.)  471, 
the  proof  was  entirely  circumstantial,  and  by  far  the  greater  part  of 
it  consisted  of  the  indirect  confessional  evidence  furnished  by  the 
prisoner  himself.  After  reviewing  all  the  other  evidence,  the 
Court  says  :  ''  These  are  the  circumstances  as  developed  up  to 
the  time  of  the  killing,  and  however  much  they  point  to  the  guilt 
of  the  prisoner,  they  may  leave  room  for  a  reasonable  doubt.  But 
the  evidence  does  not  close  here.  By  far  the  strongest  portion 
has  been  furnished  by  the  conduct  and  declarations  of  the  prisoner, 
subsequent  to  the  deed." 

Words  and  Actions  Jndicatifig  Guilty   Consciousness. 

Where  the  defendant  was  charged  with  the  murder  of  a  woman 
by  strangling  her  on  September  i  7th,  it  was  allowed  to  be  shown 
that  on  the  iSth  he  was  met  by  the  sheriff,  who  had  called  the 
day  before  to  serve  a  subpoena  in  chancery  on  the  defendant, 
and  that  the  following  conversation  occurred.  The  defendant 
said  to  the  witness,  "  You  were  at  my  house  yesterday  —  I  was 
not  at  home."  To  which  the  witness  replied,  "  No,  but  I  found 
the  woman."  Whereupon  defendant's  countenance  changed,  he 
blushed,  became  embarrassed,  and  asked,  "  What  did  you  say?" 
Moore  v.  State,  2  Ohio  St.  500,  504. 


AMERICAN   NOTES.  154'^'* 


Cojifessions  may  be  Implied  from   Conduct. 

Conkey  v.  People,  i  Abb.  App.  Dec.  418  ;  People  v.  O'Neil, 
49  Hun,  422,  17  N.  Y.  St.  R.  956,  112  N.  Y.  355;  Greenleaf 
V.  People,  85  N.  Y.  75,  39  Am.  Rep.  636. 

Or  from  the  act  of  a  third  person  done  in  the  presence  of  the 
accused.     Hochreiter  v.  People,  2  Abb.  App.  Dec.  363. 

The  making  of  false  statements  after  the  alleged  act,  which 
would  tend  to  give  a  wrong  impression  concerning  the  connec- 
tion of  the  one  sought  to  be  held  accountable  with  the  act,  may 
be  shown.  State  v.  Reed,  62  Me.  129  ;  State  v.  Benner,  64  Me. 
267  ;  Com.  V.  Webster,  5  Cush.  (Mass.)  316,  52  Am.  Dec.  711  ; 
Com.  V.  Trefethen,  157  Mass.  180,  31  N.  E.  961,  24  L.  R.  A. 
235  ;  State  v.  Reed,  62  Me.   129. 

Willingness  or  unwillingness  to  be  searched  may  be  shown. 
Riley  v.  Gourley,  9  Conn.  161. 

Where  defendant  was  pursued  and  charged  with  picking  a 
pocket,  he  denied  the  charge,  but  thrust  a  different  purse  upon 
the  owner  of  the  one  taken,  a  $10  bill  upon  her  daughter,  and 
then  ran  away.  This  evidence  was  held  sufficient  to  sustain  a 
conviction.     People  v.   Howard,  50  Mich.  390. 

A  witness  may  testify  that  the  defendant  dodged,  trembled,  and 
became  confused  when  met  by  the  witness  before  the  time  of  the 
arrest.     Beavers  v.  State,  58  Ind.  530. 

It  may  be  proved  in  evidence  that  the  defendant  showed  signs 
of  trepidation  when  tracks  leading  from  the  scene  of  a  murder 
toward  defendant's  house  were  compared  with  the  feet  of  various 
bystanders.  In  point  of  fact  they  were  found  to  correspond  with 
the  defendant's  shoes.  Wade  v.  State,  65  Ga.  756;  Russell  z'. 
Com.,  78  Va.  400. 

In  State  v.  Brown,  168  Mo.  449,  it  was  shown  that  the  defend- 
ant objected  to  having  his  shoes  measured. 

Mental  Preoccupation. 

A  clerk,  charged  with  a  crime,  may  be  shown  to  have  been  much 
preoccupied  and  absent-minded  after  the  crime  and  to  have  made 
many  mistakes.     Noftsinger  v.  State,  7  Tex.  App.  301. 


154^^**  AMERICAN   NOTES. 

Conduct  ii.ihcn  Arrested. 

The  demeanor  of  tlie  defendant  at  the  time  he  was  arrested  may 
be  proved.     Levison  v.  State,  54  Ala.  519. 

Resistance  to  arrest  inchcates  guilt,  and  may  be  proved.  Pro- 
basco  V.  Cook,  39  Mich.  717  ;  People  v.  Flannelly,  128  Cal.  83  ; 
Anderson  v.  State,  147  Iml.  445. 

Conduct  at  the  time  of  his  arrest  is  admissiljle  against  tlie  de- 
fendant charged  with  murder,  although  he  was  actually  being  ar- 
rested for  burglary,  provided  the  defendant  did  not  know  for  which 
crime  he  was  being  arrested.  People  v.  Higgins  (Mich.j,  86  N.  \V. 
812. 

Defendant  was  accused  of  killing  a  marshal,  who  had  arrested 
him,  in  Cameron,  Mo.  He  was  arrested  in  Kansas,  refused  to 
leave  without  requisition,  said  he  had  never  been  in  Missouri,  was 
much  alarmed  at  his  arrest,  and  asked  if  he  was  arrested  for  killing 
the  marshal.  This  evidence  was  of  great  weight,  because  the 
identity  of  the  murderer  was  doubtful.  State  v.  Cushenferry 
(Mo.),  56  S.  W.   737. 

Denial  of  Identity. 

The  defendant  may  be  shown  to  have  denied  his  name  when 
arrested  (State  v.  Van  Winkle,  So  Iowa,  15  ;  McCann  v.  State,  13 
Smedes  &  M.  (Miss.)  471)  ;  and  he  may  be  shown  to  have  been 
living  under  an  assumed  name.     State  v.  Whitson,  11 1  N.  C.  695. 

Conduct  during  Trial. 

The  defendant's  demeanor  during  the  trial  may  be  used  as 
evidence  of  his  guilt  or  innocence.  "  We  know  it  to  be  a  fact, 
grounded  in  human  nature,  that  the  conduct  of  a  defendant  or  of 
a  party  to  a  suit  during  the  trial  is  more  or  less  potential,  and  has 
necessarily  more  or  less  influence  with  the  Court  and  jury  upon 
the  question  of  his  credibility."     Boykin  v.  People,  22  Colo.  496. 

Attempts  to   Comproniise. 

It  may  be  shown  that  the  defendant  proposed  to  compromise 
the  case,  when  so  made  as  to  indicate  consciousness  of  guilt 
(Barr  z'.  People,  113  111.  471  (rape);  State  v.  Rodriges,  45  La. 
Ann.   1 040  (larceny)  ;    McMaih  v.  State,  55  Ga.  303;  U.  S.   v. 


AMERICAN   NOTES,  154^** 

Hunter,  Fed.  Cas.  15424)  ;  as  that  he  should  take  a  whipping  in 
heu  of  other  punishment.     State  v.  De  Berry,  92  N.  C.  800. 

Feigning  Insanity. 

It  may  be  shown  tliat  the  defendant  intentionally  acted  in  such 
a  manner  as  to  indicate  insanity.     Basham  v.  Com.,  87  Ky.  440. 

Evading  Arrest. 

It  is  competent  to  show  that  the  accused  attempted  to  evade 
the  officers.     People  v.  Taylor,  3  N.  Y.  Cr.  297. 

It  may  be  shown  that  the  defendant  disguised  himself  and  hid, 
under  an  assumed  name,  and  denied  his  identity.  People  v.  VVin- 
throp,  118  Cal.  85. 

It  is  also  permissible  to  show  that  the  defendant  concealed  him- 
self to  avoid  arrest,  or  that  he  attempted  to  escape  or  actually 
escaped  after  arrest.  People  v.  Winthrop,  118  Cal.  85;  Hitner 
V.  State,  19  Ind.  48;  State  v.  Rodman,  62  Iowa,  456;  State  v. 
Williams,  54  Mo.  170. 

Hiding  or  flight  after  the  act,  to  avoid  arrest,  may  be  proved. 
Com.  V.  Annis,  15  Gray  (Mass.),  197  ;  Com.  v.  Tolliver,  119  Mass. 
312  ;  Corn.  v.  Brigham,  147  Mass.  414. 

In  Ryan  v.  People,  79  N.  Y.  60 1,  the  Court  says:  "The  evi- 
dence that  the  defendant  made  an  effort  to  keep  out  of  the  way  of 
the  sheriff  was  very  slight,  if  any,  evidence  of  guilt.  There  are  so 
many  reasons  for  such  conduct  consistent  with  innocence  that  it 
scarcely  comes  up  to  the  standard  of  evidence  tending  to  establish 
guilt ;  but  this  and  similar  evidence  has  been  allowed  upon  the 
theory  that  the  jury  will  give  it  such  weight  as  it  deserves, 
depending  upon  surrounding  circumstances." 

Although  the  defendant  may  be  shown  to  have  changed  his 
residence  to  avoid  arrest,  letters  written  to  him  and  found  on  his 
person  advising  him  to  change  his  residence  are  not  admissible. 
People  V.  Lee  Dick  Lung,  129  Cal.  491. 

Flight. 

Instances  where  the  flight  of  the  accused  was  used  as  evidence 
of  his  guilt.  Starr  v.  U.  S.,  164  U.  S.  227  ;  Com.  v.  Tolliver,  119 
Mass.  315;  State  v.  Frederic,  69  Me.  400;  Burris  v.  State,  38 


154/**  AMERICAN   NOTES. 

Ark.  221  ;  Com.  v.  Hoschino,  176   I'a.   103;  Com.  v.   McMahon, 
145  Pa.  413. 

"  A  (light  is  universally  admitted  as  evidence  of  the  guilt  of  the 
accused,  tliough  not  conclusive.  If  we  take  a  flight  as  evidence  of 
fear,  and  fear  as  evidence  of  a  known  cause  of  dread  or  apprehen- 
sion, we  arrive  thus  at  the  inference  of  crime.  But  it  is  sufficient 
])erhaps  for  all  practical  purposes  to  regard  a  flight  as  immediate 
evidence  of  crime,  because  it  betrays  conscious  guilt.  In  this 
instance,  then,  we  take  the  flight,  a  thing  of  itself  harmless  and 
innocent,  as  evidence  of  conscious  guilt,  a  necessary  consequence 
of  the  crime  itself,  and  the  conscious  guilt,  of  which  the  flight  was 
evidence,  is  proof  in  its  turn  of  the  crime.  ...  Is  flight  the  only 
outward  evidence  of  conscious  guilt?  So  far  from  it,  any  indica- 
tions of  it,  arising  from  the  conduct,  demeanor,  or  expressions  of 
the  party,  are  legal  evidence  against  him."  Johnson  v.  State,  17 
Ala.  618. 

The  flight  and  resistance  to  arrest  of  the  defendant  may  be 
proved,  even  though  the  defendant  merely  pleaded  self-defence. 
People  V.   FIannelly,i28  Cal.  83. 

Flight  and  an  attempt  to  sell  the  borrowed  rifle  with  which  a 
homicide  had  been  done  are  admissible  in  evidence.  People  v. 
Sullivan,  129  Cal.  557. 

Where  the  defendant  was  charged  with  murder,  there  was  evi- 
dence that  he  had  told  certain  parties  that  he  had  killed  a  man 
and  needed  money  to  travel  on  ;  that  he  had  received  money  and 
fled,  and  was  a  fugitive  until  his  arrest.  Washington  v.  State,  ig 
Tex.  App.  521,  53  Am.  Rep.  387. 

It  may  be  shown  that  the  defendant  was  under  contract  and 
was  intending  to  begin  work  on  a  certain  date,  but  that  imme- 
diately after  the  crime  in  question  was  committed  he  left  the 
neighborhood.     Welsh  v.  State,  97  Ala.  i. 

"  A  consciousness  of  innocence  would  have  led  him  to  abide 
the  issue,  and  to  see  whether  time  would  not  disclose  the  real 
perpetrator.  But  he  fled  on  the  instant,  and  he  must  be  content 
to  bear  whatever  weight  this  circumstance  furnishes  against  him. 
The  consequences  of  his  own  act  must  fall  on  his  own  head.  He 
was  on  his  way  before  two  o'clock  of  that  day.  The  jury  of 
inquest  did  not  return  their  verdict  until  ten  o'clock  of  that  night ; 
and  up  to  that  time,  no  whisper  had  been   heard   that  he  was 


AMERICAN    NOTES.  154^** 

accused  or  suspecteil.  His  fears  induced  flight  before  the  voice 
of  accusation  was  raised.''  McCann  v.  State,  13  Smedes  &  M. 
(Miss.)  471,  495. 

Preparation  to  Fly. 

A  telegram  from  the  defendant  offering  to  sell  certain  horses 
may  be  admitted  with  other  circumstances  as  showing  his  prepa- 
ration for  immediate  flight.     State  v.  Espinozei,  20  Nev.  209. 

The  defendant  may  be  shown  to  have  prepared  to  fly  before  he 
committed  the  crime  charged,  by  hiring  a  horse  and  -buggy  to 
leave  the  neighborhood  that  night.  Teague  v.  State,  120  Ala.  309, 
316. 

Flight  of  Accomplice. 

The  defendant  may  be  shown  to  have  supplied  the  means  for 
the  flight  of  an  alleged  accomplice.  Jones  v.  State,  64  Ind.  473  ; 
State  V.  Hudson,  50  Iowa,  157. 

Weight  of  Evidence  in  Case  of  Flight. 

"  The  breaking  out  of  jail  and  escape  of  one  under  indictment 
for  crime  may  arise  from  conscious  guilt  and  the  fear  of  trial 
therefor,  and  the  dread  of  the  punishment  to  follow  ;  or  it  may  be 
that  the  defendant,  conscious  of  innocence,  may  dread  trial  lest  he 
be  convicted  ;  or,  again,  with  such  consciousness  of  innocence, 
being  confined  in  prison  and  unable  to  give  bail,  he  would  seek 
freedom  in  flight  from  the  discomforts  of  such  imprisonment. 
Different  individuals  might  act  differently  under  the  same  circum- 
stances, owing  to  the  difference  in  their  minds,  dispositions,  and 
characters.  Whether  or  not  the  motive  for  such  an  escape  has  its 
origin  in  the  consciousness  of  guilt  and  the  dread  of  being  brought 
to  justice,  or  whether  it  can  be  explahied  and  attributed  to  some 
other  innocent  motive,  are  questions  for  the  determination  of  the 
jury,  under  all  the  evidence  in  the  cause.  Of  itself,  such  evidence 
would  not  warrant  conviction,  but  it  is  relevant,  and  the  weight  to 
which  it  is  entitled  is  for  the  jury  under  proper  instructions  from 
the  Court."     Elmore  v.  State,  98  Ala.  12,  13  So.  427. 

The  defendant's  immediate  flight  after  a  murder,  with  proof  that 
he  had  threatened  the  deceased  and  that  he  was  present  at  the 
time  of  the  shooting,  is  sufficient  for  conviction.  Com.  v.  Sal- 
yards,  158  Pa.  501. 


154/^**  AMERICAN   NOTES. 

Flii^ht,  Instructions  to  Jury. 

The  following  instruction  has  been  held  proper:  "The  flight  of 
a  prisoner  suspected  of  crime  is  a  circumstance  to  be  weighed  by 
the  jury  as  tending  in  some  degree  to  prove  a  consciousness  of 
guilt,  and  is  entitled  to  more  or  less  weight  according  to  the  cir- 
cumstances of  the  particular  case.  .  .  .  If  you  believe  he  did  flee, 
upon  the  ])ursuit  of  the  officers,  that  is  a  circumstance  before  you, 
along  with  the  balance  of  the  testimony  in  the  case,  the  signifi- 
cance or  insignificance  of  which  is  to  be  judged  by  you."  reoi)!e 
V.  Ross,  115  Cal.  233,  235. 

It  is  error  to  quote  the  Bible,  in  instructing  the  jury,  to  the  effect 
that  the  wicked  flee  and  the  righteous  do  not,  and  to  add  :  "  That 
is  a  self-evident  proposition  that  has  been  recognized  so  often  by 
mankind  that  we  can  take  it  as  an  axiom  and  apply  it  to  this  case." 
Hickory  v.  U.  S.,  160  U.  S.  40S,  422. 

In  Alberty  v.  U.  S.,  162  U.  S.  499,  509,  it  was  held  to  be  error 
to  instruct  the  jury  "  that  from  the  fact  of  absconding  the  jury 
might  infer  the  fact  of  guilt,  and  that  flight  was  a  silent  admission 
by  the  defendant  that  he  was  unwilling  or  unable  to  face  the  case 
against  him,  and  was  in  some  sense,  feeble  or  strong,  as  the  case 
might  be,  a  confession." 

But  the  following  instruction  was  held  correct  in  Allen  v.  U.  S., 
164  U.  S.  492,  498.  "  Now,  then,  you  consider  his  conduct  at 
the  time  of  the  killing  and  his  conduct  afterwards.  If  he  fled,  if 
he  left  the  country,  if  he  sought  to  avoid  arrest,  that  is  a  fact  that 
you  are  to  take  into  consideration  against  him,  because  the  law 
says  unless  it  is  satisfactorily  explained,  —  and  he  may  explain  it 
upon  some  theory,  and  you  are  to  say  whether  there  is  any  effort 
to  explain  it  in  this  case,  — if  it  is  unexplained  the  law  says  it  is  a 
fact  that  may  be  taken  into  account  against  the  party  charged 
with  the  crime  of  murder  upon  the  theory  that  I  have  named,  upon 
the  existence  of  this  monitor  called  conscience  that  teaches  to 
know  whether  we  have  done  right  or  wrong  in  a  given  case." 

Forfeiting  Bail. 

It  may  be  shown  that  the  defendant  gave  ''straw  bail,"  and  at 
once  forfeited  it,  and  that  he  passed  under  a  number  of  aliases. 
Barron  v.  People,  73  111.  256. 


AMERICAN   NOTES.  I  54/** 

Attempted  Escape  from  Prison. 

In  Gannon  v.  People,  127  111.  507,  the  defendant,  charged 
with  drowning  his  stepson,  was  shown  to  have  expected  to  be 
accused  with  the  crime  before  any  accusation  was  made,  and  to 
have  escaped  twice  with  great  desperation  after  his  arrest. 

Attempted  escape  of  the  defendant  may  be  proved.  State  v. 
Morgan  (Utah),  61  Pac.  527. 

It  may  be  shown  that  the  defendant  attempted  to  procure  tools 
with  which  to  break  jail.     State  v.  Jackson,  95  ]\Io.  623. 

Mental  Emotion. 

"  In  the  olden  time  it  was  a  popular  superstition  that  the  corpse 
of  the  slain  would  bleed  afresh  if  touched  by  the  murderer ;  and  it 
was  deemed  almost  conclusive  of  guilt  that  he  who  was  charged 
with  the  murder  refused  to  lay  his  finger  on  the  body  or  to  take  his 
hand  ;  in  recent  years,  persons  suspected  of  murder  have  been 
required  to  touch  the  dead  body,  not  because  the  old  superstition 
was  indulged,  but  that  its  effect  on  them  — the  emotion  produced 
and  manifested  —  could  be  observed."  Gassenheimer  z^  State,  52 
^la.  316. 

Grief. 

It  may  be  shown  whether  the  defendant,  charged  with  the 
murder  of  her  sister,  exhibited  grief  over  her  sister's  death,  but  the 
evidence  of  the  State  must  be  restricted  to  manifestations  within 
a  reasonable  time  after  the  death,  and  four  months  is  too  long  a 
ime.     State  v.  Baldwin,  36  Kan.  i. 

Implied  Admission  of  Giiilt. 

When  the  defendant  was  asked  by  an  officer  why  he  had  killed 
his  wife,  he  replied  that  he  and  not  the  officer  would  have  to  suffer 
for  it.  This  was  admissible  in  evidence.  Synon  v.  People,  x8S 
111.  609. 

"  His  conduct  at  Carrollton  is  not  easy  to  reconcile  with  a 
belief  of  his  innocence.  He  exhibited  great  fear  of  being  arrested  ; 
put  his  hand  upon  his  pistol,  and  threw  himself  into  a  defensive 
attitude,  when  a  stranger  entered  the  room  in  which  he  was.  He 
then  stated  the  fact  of  the  killing,  and  of  the  finding  of  the  body 


1547***  AMKRICAN   NOTES. 

eaten  up  in  part  by  tlie  hogs,  and  saul  he  had  left,  because  lie  was 
the  last  person  seen  beliind  the  old  man,  near  Cross's  Lane,  before 
he  was  killed,  and  that  it  would  be  hard  for  him  to  jjrove  himself 
clear.  This  ileclaration  is  decisive  of  his  fate.  It  brings  him  to 
the  very  theatre  of  the  murder,  at  the  time  it  was  committed,  antl 
if  he  did  not  do  the  deed  himself,  it  is  almost  certain  that  he  would 
have  seen  the  person  who  did.  He  might  then  have  saved  him- 
self by  disclosing  the  real  murderer.  How  did  he  know  that  he 
was  the  last  person  seen  behind  the  old  man  before  he  was  killed, 
unless  he  was  the  real  murderer  himself?"  McCann  v.  State,  13 
Smedes  &  M.  (Miss.)  471,  496. 

DniiikcJi  Admissions. 

Statements  made  by  the  prisoner  before  his  arrest  to  the  effect 
that  he  had  committed  the  crime  charged,  are  admissible  notwith- 
standing the  fact  that  he  was  drunk  when  he  made  the  statements, 
and  he  claims  they  were  mere  boastful  talk  and  idle  vaporings  in  a 
yarn-telling  contest.     Horn  v.  State  (VVyo.),  73  Pac.  705. 

Silence  as  an  Implied  Confession. 

Keeping  silence  under  certain  circumstances  may  be  an  implied 
confession  (Sparf  v.  U.  S.,  156  U.  S.  57;  Com.  v.  McCabe, 
163  Mass.  98;  Richards  v.  State,  82  Wis.  172),  even  when 
under  arrest.  Murphy  v.  State,  36  Ohio  St.  628  ;  Ackerson  v. 
People,  124  111.  563;  contra.,  State  v.  Howard,  102  Mo.  142; 
Com.  V.  McDermott,  123  Mass.  440. 

There  must,  however,  be  an  opportunity  to  speak.  Hence,  no 
implication  is  to  be  drawn  from  silence  at  a  coroner's  inquest. 
People  V.   Willett,   92  N.  Y.  29. 

"  So  also,  silence,  unless  it  be  accounted  for  by  some  of  the 
circumstances  which  have  been  specified,  or  by  other  sufficient 
reason,  may  be  taken  as  a  tacit  admission  of  the  fact  stated ; 
because  a  person,  knowing  the  truth  or  falsity  of  a  statement 
affecting  his  right,  made  by  another  in  his  presence,  under  circum- 
stances calling  for  a  reply,  will  naturally  deny  it,  if  he  be  at  liberty 
to  do  so,  if  he  does  not  intend  to  admit  it."  Donnelly  v.  State, 
26  N.  J.  L.  601,  613. 

A  confession  may  be  implied  from  silence  when  one  is  charged 


AMERICAN   NOTES.  154/^** 

with  a  crime  under  circumstances  justifying  the  expectation  of  a 
reply.     Ettinger  v.  Com.,  98   Pa.  338. 

"  The  rule  is  that  a  statement  made  in  the  presence  of  a  defend- 
ant, to  which  no  reply  is  made,  is  not  admissible  against  him, 
unless  it  appears  that  he  was  at  liberty  to  make  a  reply,  and  that 
the  statement  was  made  by  such  person  and  under  such  circum- 
stances as  naturally  to  call  for  a  rei)ly  unless  he  intends  to  admit 
it.  But  if  he  makes  a  reply,  wholly  or  partially  admitting  the 
truth  of  the  facts  stated,  both  the  statement  and  the  reply  are 
competent  evidence."     Com.  v.  Brown,   121   Mass.  69,  80. 

"  To  a  remark  that  it  was  strange  he  had  fled  before  he  was 
accused,  he  made  no  reply."  This  the  Court  regards  as  evidence 
against  the  defendant.  McCann  v.  State,  13  Smedes  &  M. 
(Miss.)  497. 

Silence  —  when  no  Implication  is  Proper. 

"  If  it  appeared  that  it  was  made  in  the  course  of  a  judicial 
inquiry,  or  when  circumstances  existed  which  rendered  a  reply 
inexpedient  or  improper,  or  that  fear,  doubts  of  his  rights,  or  a 
belief  that  his  security  would  be  better  promoted  by  silence  than 
by  a  response,  governed  him  at  the  time,  then  the  testimony 
should  not  have  been  admitted  ;  for  the  reason  that  the  jury  in 
such  case  ought  not  to  have  been  allowed  to  infer  anything 
against  the  prisoner  from  his  silence."  Donnelly  v.  State,  26 
N.  J.   L.  6or,  612. 

The  silence  of  the  defendant  when  a  witness  made  statements 
prejudicial  to  him  on  a  former  trial  cannot  be  used  as  the  basis 
of  an  inference  against  him,  as  it  would  not  have  been  proper  for 
him  to  be  otherwise  than  silent.     Broyles  v.  State,  47  Ind.  251. 

The  silence  of  an  accused  at  a  judicial  inquiry  into  his  guilt  in 
the  face  of  an  accusation  against  him  is  no  evidence  of  his  guilt. 
Com  V.  Zorambo,  205  Pa.  109. 

The  defendant's  silence  in  the  face  of  accusations  was  held  not 
to  justify  an  inference  against  him  where  he  showed  that  he  had 
induced  a  friend  to  go  with  him  to  see  his  accusers  on  his  prom- 
ise not  to  lose  his  temper  and  to  be  upon  his  good  behavior. 
Slattery  v.  People,  76  111.  217. 

"  If  a  defendant  is  charged  with  crime,  and  unequivocally 
denies  it,  and  this  is  the  whole  conversation,  it  cannot  be  intro- 


154^**  AMERICAN   NOTES. 

dnced     in    evidence    against    him    as    an    admission."      Fitz.    v. 
\\illiams,    14S   Mass.  462. 

Convcrsatiom  in  the  Presence  of  ilie  Accused. 

Such  conversations  may  be  admissible  against  liie  defendant. 
State  V.  Brown,   64  N.  J.  L.  414. 

"A  conversation  in  the  presence  of  an  accused,  and  in  i)art  of 
which  he  participated,  is  admissible  in  evidence  as  a  whole. 
Where  a  conversation  involving  statements  tending  to  charge 
the  accused  with  a  crime  takes  place  in  his  presence,  and  he 
remains  silent,  when  the  circumstances  are  such  as  to  make  it 
natural  for  him  to  speak,  such  conversation  is  competent  evidence." 
Conway  v.  State,  118  Ind.  282,  21  N.  E.  285. 

Explanations  of  Apparent  Admissions. 

"If  any  part  of  a  conversation  with  the  defendant  put  in 
evidence  tends  to  show  directly  or  indirectly  that  he  is  guilty 
of  the  crime  charged,  the  defendant  has  the  right  to  have  put  in 
evidence  all  that  was  said  to  and  by  him  at  the  same  time,  and 
relating  to  the  same  subject,  although  it  is  in  his  favor."  Com.  v. 
Keyes,  11  Gray,  323. 

Facts  explaining  or  quahfying  a  confession  or  which  indicate  its 
falsity  are  admissible.     People  v.  Fox,  121  N.  Y.  449. 

Suppression,   Destruction,  Fabrication,  and  Simulation 
of  Evidence. 

"  To  the  same  head  may  be  referred  all  attempts  on  the  part  of 
the  accused  to  suppress  evidence,  to  suggest  false  and  deceptive 
explanations,  and  to  cast  suspicion,  without  just  cause,  on  other 
persons,  all  or  any  of  which  tend  somewhat  to  prove  conscious- 
ness of  guilt,  and,  when  proved,  to  exert  an  influence  against 
the  accused.  But  this  consideration  is  not  to  be  pressed  too 
urgently ;  because  an  innocent  man,  when  placed  by  circum- 
stances in  a  condition  of  suspicion  and  danger,  may  resort  to  (ie- 
ception  in  the  hope  of  avoiding  the  force  of  such  proofs."  Com. 
V.  Webster,  5  Cush.  295,  316. 

Suppression  of  Evidence. 
It  may  be  shown  that  the  accused  concealed  property  illegally 


AMERICAN   NOTES.  154;;^** 

obtained  or  illegally  sold.  State  v.  Bruce,  24  Me.  72  ;  Com.  v. 
Wallace,  123  Mass.  400;  Com.  v.  Welch,  163  Mass.  372. 

It  may  be  shown  that  the  accused  commanded  his  wife  to  tell 
nothing.     Liles  v.  State,  30  Ala.   24. 

The  motives  of  a  third  party  who  induced  a  witness  for  the 
State  to  leave  the  State  for  a  bribe  are  not  admissible.  Chelton  v. 
State,  45  Md.  560. 

Failure  to  produce  evidence  is  not  necessarily  suppression 
thereof.     McCabe  v.  Com.   (Pa.),  8  Ad.  45. 

Intimidaiion  of  Witnesses. 

Where  defendant  was  charged  with  arson,  it  was  shown  that 
he  tried  to  intimidate  certain  witnesses  against  him.  State  v. 
Millmeier  (Iowa),  72   N.  W.  275. 

Bribing  Witnesses. 

It  is  competent  to  show  that  an  agent  of  a  party  employed  to 
collect  testimony  and  interview  witnesses  has  resorted  to  bribery 
even  though  he  was  not  expressly  authorized  to  employ  such 
means.  Nowack  v.  Metropolitan  St.  Ry.  Co.,  166  N.  Y.  433, 
60  N.  E.  32,  reversing  66  N.  Y.  Supp.  533. 

Evidence  of  bribery,  wliile  admissible,  is  not  conclusive.  It  is 
proper  to  warn  the  jury  not  to  give  undue  importance  to  such 
testimony.  Nowack  '■.  Metropolitan  St.  Ry.  Co.,  166  N.  Y.  433, 
60  N.  E.  32,  reversing  66  N.  Y.  Supp.  533. 

It  may  be  shown  that  the  defendant  tried  to  bribe  the  officer 
arresting  him.     Com.  v.  Wallace,  123  Mass.  400. 

Influencing  Witnesses. 

Where  the  defendant  was  charged  with  rape,  a  note  written  by 
him  to  the  prosecutrix  urging  her  to  deny  everything,  to  keep  her 
promise,  and  not  to  write  or  say  anything  about  the  transaction, 
was  held  admissible  in  evidence.  State  v.  Mahoney  (Mont.),  61 
Pac.  647. 

In  People  v.  Burt,  64  N,  Y.  Supp.  417,  51  App.  Div.  106,  it 
was  shown  that  the  defendant,  charged  with  murder,  had  attempted 
to  get  the  one  who  sold  him  a  revolver  to  keep  still,  to  influence 
the  testimony  of  other  witnesses,  and  to  manufacture  a  false  alibi. 


I  54''  AMERICAN   NOTES. 

Attempts  on  the  part  of  the  defendant  to  influence  witnesses  or 
jurors  are  admissible  in  evidence.      People  ?'.  Mason,  29  Mich.  31. 

Bribing  of  Jurors. 

It  may  be  shown  that  the  defendant  attempted  to  bribe  a  juror. 
State  V.  Case,  93  N.  C.  545,  53  Am.  Rep.  471. 

Attempts  to  Divert  Suspicion. 

In  Com.  V.  Webster,  5  Cush.  295,  evidence  was  allowed  to  show 
that  the  defendant  had  written  with  a  pine  stick  having  a  wad  of 
cotton  on  one  end,  three  anonymous  letters  to  the  city  marshal  for 
the  purpose  of  diverting  suspicion  away  from  the  real  scene  of  the 
murder. 

"  Under  this  rule,  every  circumstance  relied  npon  as  material  is 
to  be  brought  to  the  test  of  strict  i)roof ;  and  great  care  is  to  be 
taken  in  guarding  against  feigned  and  pretended  circumstances, 
which  may  be  designedly  contrived  and  arranged,  so  as  to  create  or 
divert  suspicion  and  prevent  the  discovery  of  the  truth.  These, 
by  care  and  vigilance,  may  generally  be  detected,  because  things 
are  so  ordered  by  Providence,  —  events  and  their  incidents  are  so 
combined  and  linked  together,  —  that  real  occurrences  leave  behind 
them  vestiges,  by  which,  if  carefully  followed,  the  true  character  of 
the  occurrences  themselves  may  be  discovered.  A  familiar  instance 
is,  where  a  person  has  been  slain  by  the  hands  of  others,  and  cir- 
cumstances are  so  arranged  as  to  make  it  appear  that  the  deceased 
committed  suicide.  In  a  case  recorded  as  having  actually  occurred, 
the  print  of  a  bloody  hand  was  discovered  on  the  deceased.  On 
examination,  however,  it  was  the  print  of  a  left  hand  upon  the  left 
hand  of  the  deceased."     Com.  v.  Webster,  5  Cush.  295,  318. 

It  may  be  proved  that  to  account  for  the  absence  of  the  deceased, 
alleged  to  have  been  murdered,  the  defendant  spread  reports  that 
he  had  stolen  a  horse  and  gone  to  Texas.  Lancaster  v.  State,  91 
Tenn.  267. 

In  State  v.  Tettaton,  159  Mo.  354,  where  the  defendant  was 
charged  with  shooting  his  stepmother  and  her  four  children,  and 
then  burning  the  house  and  their  bodies,  he  was  found  pretending 
to  be  unconscious  in  the  yard  with  wounds  inflicted  by  himself 
with  his  bloody  knife  found  near  by,  although  he  claimed  the 
wounds  had  been  inflicted  by  two  robbers. 


AMERICAN   NOTES.  154^** 

111  Butler  7'.  State  (Ark.),  63  S.  W.  46,  where  defendant  was 
charged  with  the  murder  of  his  daughter  with  an  axe,  he  made  an 
elaborate  attempt  to  indicate  the  presence  of  another  man  in  the 
house.  When  called  immediately  after  the  murder,  he  pretended 
to  leap  out  of  his  bed,  he  seized  his  gun  and  fired  at  a  supposed 
escaping  man  in  the  yard,  and  he  had  previously  thrown  the  bloody 
axe  into  the  yard. 

Destruction  of  Evidence. 

Voluntary  destruction  of  an  instrument  raises  a  presumption  that 
it  was  unfavorable  to  the  party  doing  the  act.  Jones  7a  Knauss, 
31  N.  J.  Eq.  609. 

It  may  be  shown  that  the  defendant  burned  the  building  entered, 
to  conceal  his  burglary.     Robertson  v.  State  (Fla.),  24  So.  474. 

Hasty  Intennent  of  Body. 

In  State  v.  Edmonson.  131  Mo.  348,  the  defendant,  charged 
with  causing  the  death  of  a  girl  pregnant  by  him,  by  procuring  an 
abortion,  was  shown  to  have  urged  her  immediate  burial. 

Contradictory  Statements. 

Attention  of  jury  may  be  called  to  contradictory  statements  of 
a  prisoner  in  relation  to  the  crime.     Cathcart  v.  Com.  37  Pa.  108. 

In  Baines  v.  State  (Tex.),  66  S.  W.  847,  the  defendant  intro- 
duced evidence  of  an  alibi,  and  the  State  proved  his  statements 
after  his  arrest  to  the  effect  that  he  had  been  alone  at  his  home. 

Contradictory  and  improbable  statements  by  the  accused  as  to 
an  attack  by  a  band  of  five  robbers  who  killed  all  the  members  of 
the  family  while  she  alone  escaped,  such  statements  being  shown 
to  be  false.     Cicely  v.  State,  13  Smedes  &  M.  (Miss.)  203. 

False  or  Evasive  Testitnony. 

Falsehood  and  evasion  by  the  accused  are  proper  evidence  upon 
the  question  of  his  guilt  or  innocence.  People  v.  Conroy,  97  N.  Y. 
62,  80,  2  N.  Y.  Cr.  565,  33  Hun,  119. 

In  Fuller  v.  State,  109  Ga.  809,  the  defendant  was  shown  to 
have  denied  all  knowledge  of  the  crime  at  first  and  to  have 
testified  later  that  a  co-defendant  committed  the  murder  in  his 
presence. 


154/'**  AMERICAN   NOTES. 

Tlic  (lefendant  may  be  shown  to  have  denied,  at  the  time  of  his 
arrrst.  that  he  had  been  near  the  scene  of  the  crime  for  three 
months,  while  at  the  trial  he  does  not  deny  being  there.  State  v. 
Hudson  (Iowa),  80  N.  W.  232. 

In  People  v.  Driscoll,  107  N.  Y.  414,  the  defendant,  charged 
with  murder,  claimed  that  the  shooting  was  done  by  one  M. 
Deceased  had  been  shot  in  M's  house  and  defendant  was  outside. 
But  the  State  proved  that  the  defendant  and  the  deceased  had 
gone  to  M"s  house  to  kill  him,  that  deceased  got  inside,  but  defend- 
ant failed,  and  that  defendant  then  fired  through  the  door.  The 
deceased  at  first  said  M  killed  her,  but  later  said  it  was  the 
defendant.  M  fled,  but  returned  and  gave  up  his  pistol,  fully 
loaded,  with  no  sign  of  a  recent  discharge.  The  defendant  denied 
having  been  at  M's  house  at  all.     He  was  convicted  of  murder. 

Where  the  defendant  claimed  that  the  deceased  fired  at  him 
first,  the  State  proved  that  the  deceased  had  no  gun,  that  four  shots 
were  fired,  and  that  four  chambers  of  defendant's  revolver  were 
empty.     Clark  v.  Com.,  90  Va.  360. 

False  Claim  of  Accident  set  up  at  Trial  for  First   Time. 

Where  defendant  claimed  that  the  shooting  was  an  accident,  his 
testimony  was  much  weakened  by  proof  that  at  the  time  of  the 
shooting,  and  in  conversation  with  witnesses  afterwards,  he  had  said 
nothing  about  its  being  accidental.  Foster  v.  State,  74  Tenn.  213. 
And  in  State  v,  Sterrett,  80  Iowa,  609,  where  a  similar  claim  of 
accident  was  made  at  the  trial,  it  was  shown  that  defendant  had 
formerly  said  that  he  shot  deceased  because  of  the  latter's  abuse. 

Fabricating  Evidence. 

That  one  has  attempted  to  fabricate  evidence  for  the  purposes 
of  defence  may  be  shown  (People  v.  Bassford,  3  N.  Y.  Cr.  219; 
McMeen  v.  Com.,  114  Pa.  300;  State  v.  Williams,  27  Vt.  226; 
Lyons  v.  Lawrence,  12  111.  App.  53;  Heslop  v.  Heslop,  82  Pa. 
537)  ;  and  efforts  to  secure  the  absence  of  witnesses  (State  v. 
Barron,  37  Vt.  57  ;  State  v.  Nocton,  121  Mo.  537)  ;  and  attempts 
to  bribe  a  juror  (Hastings  v.  Stetson,  130  Mass.  76;  Taylor  v. 
Oilman,  60  N.  H.  506)  ;  or  to  escape  justice.  State  v.  Frederic, 
69  Me.  400;  State  v.  Palmer,  60  N.  H.  216,  20  Atl.  6;  Hickory 
V.  U.  S.,  160  U.  S.  408. 


*» 


AMERICAN  NOTES.  154(7 

The  following  instruction  was  held  proper :  "  You  will  under- 
stand that  your  first  duty  in  the  case  is  to  reject  all  evidence  that 
you  may  find  to  be  false ;  all  evidence  that  you  may  find  to  be 
fabricated,  because  it  is  worthless  ;  and  if  it  is  purposely  and  in- 
tentionally Invoked  by  the  defendant  it  is  evidence  against  him  ; 
it  is  the  basis  for  a  presumption  against  him,  because  the  law  says 
that  he  who  resorts  to  perjury,  he  who  resorts  to  subornation  of 
perjury  to  accomplish  an  end,  this  is  against  him,  and  you  may 
take  such  action  as  the  basis  of  a  presumption  of  guilt."  Allen  v. 
U.  S.,  164  U.  S.  492,  498. 

Where  defendant  was  charged  with  wife  murder,  his  attempt 
to  prove  an  alibi  was  overthrown  by  convincing  evidence;  and  a 
letter  that  he  produced,  purporting  to  be  from  his  wife,  confessing 
her  infidelity  and  indicating  that  she  would  commit  suicide,  was 
shown  by  the  State  not  to  be  in  the  wife's  handwriting.  People  z: 
Hamilton,  137  N.  Y.  531. 

"The  fabrication  of  an  alibi,  like  the  wilful  introduction  of  false 
and  fabricated  evidence  in  support  of  any  other  ground  of  defence, 
is  a  circumstance  against  the  accused."  White  v.  State,  31  Ind. 
262. 

False  Alibi. 

In  People  v.  Durrant,  116  Cal.  179,  where  the  defendant  was 
charged  with  the  murder  of  a  girl  in  a  church  at  3  p.  m.,  he  alleged 
that  at  that  time  he  was  attending  a  lecture  on  the  sterilization  of 
milk  at  a  Medical  College  where  he  was  a  student,  and  he  pro- 
duced his  original  notes  of  the  lecture  in  corroboration  of  his 
statement.  But  the  State  showed  that  he  had,  after  his  arrest, 
secretly  called  in  a  fellow  student  and  told  him  that  he  had  no 
such  notes  and  needed  them  to  support  his  alibi,  and  that  the  fel- 
low student  thereupon  promised  to  lend  him  his,  proposing  two 
methods  by  which  the  defendant  could  get  them  into  his  note- 
book. 

Where  defendants  accused  of  murder  set  up  an  alibi,  the  pros- 
ecution may  explain  the  presence  of  the  accused  at  the  distant 
place  by  proof  that  they  rode  away  on  horses  belonging  to  a  cer- 
tain person  who  found  his  horses  and  saddles  gone.  Com.  v. 
Roddy,  184  Pa.  274, 

In  State  v.  Howard,  118  Mo.  127,  the  defendant,  charged  with 
murder,  attempted  to  prove  an  alibi,  but  his  witnesses  were  im- 


154'**  AMERICAN  NOTES. 

peaclied  and  the  testimony  as  to  his  having  been  near  the  scene 
of  the  crime  was  convincing. 

Failure  to  Explain  Suspicious  CircumstaJiccs. 

"  The  instinct  of  self-preservation  impels  one  in  peril  of  the  pen- 
itentiary to  produce  whatever  testimony  he  may  have  to  deliver 
him  from  such  peril.  Every  man  will  do  what  he  can  to  shield 
himself  from  the  disgrace  of  a  conviction  of  crime,  and  the  burden 
of  punishment.  We  all  know  this.  We  all  expect  it.  Whenever, 
then,  a  fact  is  shown  which  tends  to  prove  crime  upon  a  defendant, 
and  any  explanation  of  such  fact  is  in  the  nature  of  the  case 
peculiarly  within  his  knowledge  and  reach,  a  failure  to  offer  an  ex- 
planation must  tend  to  create  a  belief  that  none  exists.  Will  not 
a  man,  who  can,  explain  that  which  unexplained  will  stamp  him  a 
criminal  and  consign  him  to  the  felon's  cell?  The  criminal  law 
furnishes  in  its  rules  more  than  one  illustration  of  this  principle. 
The  possession  of  recently  stolen  property  casts  upon  the  pos- 
sessor the  duty  of  explaining  such  possession.  Why?  Because 
the  fact  and  manner  of  acquiring  that  possession  are  peculiarly 
within  his  knowledge  and  reach,  and  the  instinct  of  self-preser- 
vation will  compel  him  to  give  an  explanation  thereof  consistent 
with  his  innocence,  if  any  such  explanation  exists."  State  v. 
Grebe,  17  Kan.  458. 

Failure  to  Call  Witnesses. 

The  failure  of  the  accused  to  produce  witnesses  accessible  to 
him  may  be  considered  as  tending  to  strengthen  the  evidence 
given  against  him.  People  v.  Grimshaw,  33  Hun,  505,  510, 
2  N.  Y.  Cr.  390. 

Evidence  to  account  for  the  absence  of  a  witness  may  be  intro- 
duced, as,  for  instance,  that  he  is  under  arrest.  Pease  v.  Smith, 
5  Lans.  519,  61  N.  Y.  477. 

For  limitations  of  the  rule,  see  Ward  v.  St.  Vincent's  Hospital, 
72  N.  Y.  Supp.  587. 

Where  a  party  takes  every  step  to  compel  the  attendance  of  the 
witness,  his  failure  to  appear  is  not  to  be  considered  as  affecting 
his  case.  Judgment  (1S95),  35  N.  Y.  Supp.  325,  89  Hun,  449, 
affirmed;  Manhattan  Life  Ins.  Co.  z/.  Alexander,  53  N.  E.  1127, 
158  N.  Y.  732. 


AMERICAN   NOTES.  1 54  J-** 

No  presumption  as  to  what  a  witness's  testimony  would  be  from 
failure  to  call  him.     Com.  v.  McMahon,  145  Pa.  413. 

Failure  to  call  an  alleged  paramour  to  testify,  although  within 
easy  reach,  is  significant  of  guilt.     Bibby  v.  Bibby,  2>Z  N.  J.  Eq. 

56. 

In  Georgia  the  statute  creates  a  presumption  that  a  charge  is 
well  founded  if  the  party  fails  to  introduce  evidence  in  his  power, 
or  introduces  inferior  evidence  when  he  could  have  produced 
better.     Code  1S95,  §  5163,  Cr.  C.  §  989. 

Failure  to   Testify. 

Failure  of  an  accused  to  become  a  witness  may  be  considered 
by  the  jury.     Parker  v.  State,  61  N.  J.  L.  308. 

The  failure  of  a  party  to  appear  and  testify  may  be  considered, 
and  such  failure  may  be  explained  on  his  part  by  showing  circum- 
stances which  prevented  him  from  giving  his  evidence.  Brown  v. 
Barse,  10  App,  Div.  444,  42  N.  Y.  Supp.  306. 

The  non-attendance  of  the  plaintiff  who  has  personal  knowledge 
of  the  transaction  to  appear  and  testify  on  the  trial  is  a  circum- 
stance to  be  considered  by  the  jury.  Brooks  v.  Steen,  6  Hun, 
516. 

Failure  to  Testify. 

Failure  to  testify  when  accused  of  fraud  raises  a  presumption 
against  one.     Dawson  v.  Waltemeyer,  91  Md.  328. 

The  prosecuting  attorney  may  comment  to  the  jury  on  the 
failure  of  the  accused  to  deny  as  a  witness  the  allegations  of  the 
State.     Brashears  v.  State,  58  Md.  563. 


Scientific   Testimony. 

"When  there  is  a  question  as  to  any  point  of  science  or  art,  the 
opinions  upon  that  point  of  persons  specially  skilled  in  any  such 
matter  are  deemed  to  be  relevant  facts.  Such  persons  are  herein- 
after called  experts.  The  words  'science  or  art'  include  all  sub- 
jects on  which  a  course  of  special  study  or  experience  is  necessary 
to  the  formation  of  an  opinion,  and  amongst  others  the  examination 
of  handwriting."     Stephen's  Dig.  Evid.,  Art.  49. 


154^**  AMERICAN   NOTES. 

Qiialifuaiion   of  Experts. 

In  State  7'.  Hinkle,  6  Iowa,  380,  two  physicians  were  allowed  to 
testify  as  to  tests  they  made  upon  tlie  stomach  of  the  deceased, 
for  the  detection  of  poison,  even  though  they  both  atlmitted  tliat 
they  were  not  practical  chemists  and  were  inexperienced  in  de- 
tecting poisons.  After  admitting  that  tiie  testimony  should  be 
given  less  weight,  the  Court  says  :  "  But  to  say  that  none  shall  be 
permitted  to  give  their  opinions,  except  those  of  the  highest  pro- 
fessional skill  or  those  who  had  given  their  lives  to  chemical  ex- 
periments, would,  in  this  country  at  least,  render  it  impossible,  in 
most  cases,  to  find  the  requisite  skill  and  ability."' 

A  person  in  reality  a  medical  expert  can  give  his  opinion, 
although  he  has  no  license  to  practise  ;  however,  the  Court  will 
receive  his  testimony  only  when  made  satisfied  of  his  competency 
as  an  expert. 

Pursuit  for  an  indefinite  time  of  the  study  of  medicine,  and  inci- 
dentally of  nervous  diseases,  and  the  fact  that  he  is  a  manufacturer 
of  medicines  as  well  as  the  publisher  of  books  on  medicine,  also 
that  he  is  the  author  of  one,  without  giving  its  subject,  however,  do 
not  qualify  a  witness  to  testify  as  an  expert  on  insanity.  People 
V.  Rice,  54  N.  E.  48,  159  N.  Y.  400. 

An  undertaker's  assistant  held  not  to  be  qualified  as  an  expert 
to  testify  as  to  when  rigor  fnortis  sets  in  after  death.  Com.  v. 
Farrell,  187  Pa.  408. 

Value  of  Expert  Testimony. 

In  State  v.  Kelly,  77  Conn.  266,  275,  it  is  said:  "The  State 
introduced  the  testimony  of  experts  to  establish  the  cause  of  death. 
The  accused  asked  the  Court  to  charge  that  the  evidence  of  ex- 
perts is  of  the  very  lowest  order,  and  the  most  unsatisfactory 
character,  and  that  all  testimony  founded  on  opinion  merely  is 
weak  and  uncertain,  and  should  in  every  case  be  weighed  with 
great  caution.  The  Court  declined  to  so  charge,  and  instructed 
the  jury  in  effect  that  such  testimony  was  to  be  weighed  and 
judged  like  any  other,  and  the  same  tests  applied  thereto,  the 
considerations  which  ought  to  enter  into  such  judgment  being 
quite  fully  stated.  The  Court  was  correct  in  refusing  the  request. 
State  V.  Rathbun,  74  Conn.  524." 


AMERICAN   NOTES.  154?^** 

Although  the  competency  of  an  expert  is  a  question  for  the 
Court,  the  weight  to  be  given  to  his  testimony  is  for  the  jury, 
and  they  may  consider  the  extent  of  his  quahfications.  The  fol- 
lowing instruction  has  been  upheld  :  "  You  are  the  judges  of  the 
weight  to  be  given  to  such  testimony,  taking  into  consideration 
the  knowledge  of  said  witnesses,  or  the  want  of  it,  the  disagree- 
ment of  the  experts,  if  any,  and  also  the  further  fact  whether  they 
or  any  of  them  are  practical  chemists,  or  whether  they  or  any  of 
them  have  little  or  great  knowledge  of  chemistry."  State  v.  Cole, 
6;^  Iowa,  695. 

In  Parnell  ?'.  Com.,  86  Pa.  260,  where  the  defendant's  sanity  was 
to  be  determined,  it  was  held  error  for  the  trial  court  to  express  a 
doubt  to  the  jury  as  to  "  wliether  you  will  realize  much,  if  any, 
valuable  aid  from  them  (medical  experts)  in  coming  to  a  cor- 
rect conclusion  as  regards  the  responsibility  for  crime  by  this 
prisoner." 

In  regard  to  the  weight  of  expert  testimony  as  to  insanity,  the 
jury  in  State  v.  Windsor,  5  Harr.  (Del.)  512,  542,  was  instructed: 
"  Such  opinions,  when  they  come  from  persons  of  great  experi- 
ence, and  in  whose  correctness  and  sobriety  of  judgment  just  con- 
fidence can  be  had,  are  of  great  weight,  and  deserve  the  respectful 
consideration  of  the  jury.  But  the  opinion  of  a  medical  man  of 
small  experience,  or  of  one  who  has  crude  and  visionary  notions, 
or  who  has  some  favorite  theory  to  support,  is  entitled  to  very 
little  consideration." 

Foisoiiing  Cases. 

A  physician,  after  a  minute  microscopical  examination  of  the 
stomach   and    intestines    of    the    person    alleged    to    have    been ' 
poisoned,  may  testify  that  he  found  "tartar  emetic,"  and  that,  in 
his  opinion,  it  was  the  cause  of  the  death.     State  v.  Fournier,  68 
Vt.  262. 

Experts  who  have  made  an  analysis  may  testify  as  to  finding 
poisons  in  the  body  of  the  deceased.     State  v.  Bowman,  78  N.  C. 

509- 

In  the  case  of  Com.  v.  Hobbs,  140  Mass.  443,  the  defendant 
was  charged  with  attempting  to  poison  another  by  mixing  white 
arsenic  with  certain  rye  and  Indian  meal  used  by  that  other.  It 
was  shown  that  the  defendant  had  bought  two  boxes  of  "  Rough 


154^"'**  AMERICAN   NOTES. 

oil  Rats."  A  chemist  was  allowed  to  testify  thai  he  had  analyzed 
certain  bread  baked  from  the  meal,  and  also  certain  samples  of 
the  meal,  and  that  they  contained  white  arsenic;  also  that  he  had 
analyzed  samples  of  the  trade  substance  known  as  "  Rough  on 
Rats,"  though  not  the  contents  of  the  particular  boxes  bought  by 
the  defendant,  and  found  that  the  substance  was  white  arsenic 
colored  with  lampblack. 

In  State  v.  Cole,  94  N.  C.  958,  the  defendant  was  charged  with 
murdering  his  wife  with  strychnia.  Her  body  was  exhumed  sev- 
eral months  after  death,  the  stomach  removed  by  two  i^hysicians 
and  sealed  in  a  glass  jar,  and  turned  over  to  a  chemist  and  toxi- 
cologist  for  analysis.  He  testified  that  he  had  found  strychnia,  and 
that  it  had  caused  death. 

An  expert  was  allowed  in  State  v.  Slagh,  83  N.  C.  630,  to  state 
his  opinion  that  a  mixture  contained  certain  poisonous  ingredients, 
without  having  made  an  analysis,  but  merely  from  the  taste,  smell, 
and  appearance. 

A  physician  may  testify  as  an  expert  as  to  the  symptoms  to  be 
expected  to  follow  the  administration  of  a  certain  poison,  or  as  to 
the  effect  of  a  poison  on  the  human  system.  State  v.  Cook,  17 
Kan.  392  ;  State  v.  Terrill,  12  Rich.  (S.  C.)  321. 

A  chemist  and  toxicologist  may  testify  as  to  the  finding  of  poison 
in  the  stomach  of  the  deceased,  and  as  to  the  effect  it  would  have 
upon  the  human  system,  even  though  he  is  not  a  physician.  State 
V.  Cook,  17  Kan.  392. 

A  physician  who  has  no  knowledge  of  the  effects  of  a  certain 
substance,  except  that  it  killed  a  cat  upon  which  he  tried  it,  can- 
not, in  a  homicide  case,  testify  that  it  was  a  poison.  Rose  v. 
State,  7  Circ.  Dec.  226,  13  Oiiio  Circ.  Ct.  342,  56  Ohio  St.  779. 

There  is  no  presumption  that  the  chemicals  used  to  detect 
poison  were  impure.     Dyer  v.  State,  74  Ind.  594. 

Blood  Stains. 

Experts  are  allowed  to  testify  that  they  can  determine  whether 
certain  blood  is  human  or  not,  and  further,  as  to  whether  the  blood 
in  question  is  human.  Com.  v.  Sturtivant,  117  Mass.  122;  State 
V.  Knight,  43  Me.  i,  133  ;  Knoll  v.  State,  55  Wis.  249, 

Evidence  of  physician  that  certain  spots  on  overalls  were  blood 


AMERICAN   NOTES.  1^4  zv** 

admissible.  Com.  v.  Crossmire,  156  Pa.  304;  See  McLain  v. 
Com.,  99  Pa.  86. 

Evidence  of  a  test  by  physicians  as  to  a  spot  of  supposed  blood 
on  the  defendant's  clothing  is  admissible.  Beavers  v.  State,  58 
Ind.  530. 

One  not  an  expert  may  be  permitted  to  testify  that  certain 
spots  were  blood  stains.  "  We  have  given  due  consideration  to 
the  able  argument  of  the  prisoner's  counsel,  to  the  effect  that 
uneducated  and  ignorant  men  are  incompetent  to  testify  under 
the  circumstances,  and  that  it  is  alone  within  the  province  of 
experienced  and  scientific  experts  to  give  evidence  on  the  subject ; 
but  we  are,  after  careful  investigation,  brought  to  the  conclusion, 
that  in  many  instances  the  ordinary  mind  may  be  able  to  determine 
from  observation  and  experience  the  character  of  such  stains." 

In  People  7'.  Gonzales  (35  N.  Y.  49),  it  was  held  that  stains 
of  blood  upon  the  person  and  clothing  worn  by  the  accused  on 
the  night  of  the  murder  may  be  shown  by  persons  who  are  not 
experts,  and  matters  of  common  observation  may  ordinarily  be 
proved  by  those  who  witness  them,  without  resorting  to  scientific 
or  mechanical  tests  to  verify  them  with  definite  precision.  It  is 
said,  in  the  opinion  by  Porter,  J.:  "  The  testimony  of  the  chem- 
ist who  has  analyzed  blood,  and  that  of  the  observer  who  has 
merely  recognized  it,  belong  to  the  same  legal  grade  of  evidence  ; 
and  though  the  one  may  be  entitled  to  much  greater  weight  than 
the  other,  with  the  jury,  the  exclusion  of  either  would  be  illegal." 
People  V.  Greenfield,  85  N.  Y.  75,  39  Am.  Rep.  636. 

Stains  may  be  proved  to  be  blood,  even  though  no  analysis  is 
made.  It  is  for  the  jury  to  say  whether  the  proof  is  sufficient. 
Gaines  z:  Com.,  50  Pa.  330. 

Experi7nents. 

An  expert  may  give  an  account  of  experiments  performed  by 
him  for  the  purpose  of  forming  his  opinion.  Sullivan  v.  Cora., 
3  Pa.   284. 

Evidence  of  experiments  to  test  the  truth  of  testimony  as  to  cer- 
tain occurrences  may  be  admissible  if  it  is  clear  that  they  were  per- 
formed under  the  same  circumstances  as  existed  at  the  time  of  the 
original  occurrence.  People  v.  Levine,  85  Cal.  39  (length  of  time 
for  a  candle  to  burn  a  certain  amount)  ;   People  v.  Morrigan,  29 


ic^.r**  AMERICAN  NOTES. 

Mich.  5  (possibility  of  taking  a  certain  pocket-book  through  a  slit 
in  a  coat  since  mended) ;  People  v.  Clark,  84  Cal.  573  (distance 
at  which  the  discharge  of  a  gun  will  burn  clothing) ;  Starr  ?'. 
People  (Colo.),  63  Pac.  299  (distance  a  certain  conversation 
could  have  been  heard) ;  Wilson  v.  State  (Tex-),  36  S.  W.  587 
(same  );  State  v.  Flint,  60  Vt.  304  (time  required  to  walk  between 
two  places);  Moore  v.  State,  96  Tenn.  209  (relative  positions  of 
accused  and  deceased  when  a  shot  was  fired)  ;  Sullivan  z\  Com., 
93  Pa.  284  (powder  marks). 

Cause  and  Nature  of  an  Injury. 

Expert  opinion  is  admissible  as  to  the  nature  and  effect  of  an 
injury,  and  also  as  to  how  it  was  caused.  Williams  v.  State,  64 
Md.  384. 

A  medical  expert  may  testify  as  to  what,  in  his  opinion,  caused  a 
hole  in  the  skull  of  deceased.     Davis  v.  State,  38  Md.  15. 

Means  of  Producing  Death. 

Expert  evidence  may  be  admissible  as  to  the  means  by  which 
death  was  produced.  In  People  v.  Durrant,  116  Cal.  179,  210, 
the  Court  says  as  follows  :  "  Dr.  Barret  was  shown  to  be  a  prac- 
tising physician  and  surgeon.  He  performed  the  autopsy  upon 
the  body  of  the  dead  girl,  gave  evidence  of  its  condition,  and  ex- 
pressed his  judgment  that  the  cause  of  death  was  strangulation. 
He  was  then  asked  :  '■  What  in  your  judgment  was  the  means  used 
for  the  strangulation?'    The  witness  answered  :    *  I  think  the  means 

used  were  hands.'  " 

Rape. 

Expert  testimony  is  admissible  in  rape  cases  to  determine 
whether  or  not  there  was  penetration.  State  v.  Smith,  Philip's 
(N.  C.)  Law,  302  ;  State  v.  Knapp,  45  N.  H.  148. 

And  in  Richardson's  Medical  Microscopy,  299,  it  is  said  that 
by  the  use  of  the  microscope,  stains  upon  the  female's  clothing 
may  be  shown  with  absolute  certainty  to  be  seminal  stains. 

AboJiion. 

Experts  may  testify  as  to  the  drugs  and  instruments  with  which 
an  abortion  can  be  produced,  and  whether  an  abortion   has  been 


AMERICAN   NOTES.  1 54;'** 

performed.     State  v.  Smith,  32  Me.  370  ;   Reg.  v.  Still,  30  Upper 
Can.  (C.  P.)  30;  Com.  v.  Brown,  121  Mass.  69. 

Pregnancy. 

Scientific  testimony  is  admissible  on  the  question  of  the  con- 
ditions under  which  pregnancy  may  occur.  Young  7'.  Johnson, 
123  N.  Y.  232. 

Identification  of  IVooct. 

Skilled  woodworkers  have  been  allowed  to  testify  that  a  block 
found  in  a  box  used  for  incendiary  purposes  was  originally  part 
of  the  same  stick  as  other  pieces  found  in  the  defendant's  work- 
shop, the  object  of  the  testimony  being  to  connect  the  defendant 
with  the  crime  of  arson  where  an  exactly  similar  box  had  been 
used.     Com.  v.  Choate,  105  Mass.  451. 


CHAPTER     IV. 

EXTRINSIC  AND  MECHANICAL  INCULPATORY 
INDICATIONS. 

Inculpatory  circumstances  of  an  extrinsic  and 
mechanical  nature,  are  such  as  are  derived  from  the 
physical  peculiarities  and  characteristics  of  persons 
and  things, — from  facts  and  objects  which  bear  a 
relation  to  our  corporeal  nature,  and  are  apparently 
independent  of  moral  indications.  Such  facts  are 
intimately  related  to,  and  as  it  were  dovetail  with,  the 
corpus  delicti;  and  they  are  the  links  which  establish 
the  connection  between  the  guilty  act  and  its  visible 
moral  origin.  It  is  impossible  even  to  classify,  and 
still  less  to  enumerate,  evidentiary  facts  of  the  kind 
in  question,  except  in  a  very  general  way ;  but  it 
may  be  interesting  and  instructive,  by  way  of 
illustration,  to  advert  to  some  of  the  principal  heads 
of  such  evidence,  and  to  some  remarkable  cases 
which  have  occurred  in  the  records  of  our  criminal 
jurisprudence.  One  important  and  admonitory 
result  of  such  a  process  will  be  to  show  that  all  such 
facts  are  unavoidably  associated  with  attendant 
sources  of  error  and  fallacy. 

The  principal  facts  of  circumstantial  evidence  of 
an  external  character  relate  to  questions  of  identity 
— of  person — of  things — of  handwriting  —  and  of 
time  ;  but  there  must  necessarily  be  a  number  of 
isolated  facts  which  admit  of  no  specific  classification. 


156        extrinsic  inculpatory  indications. 

Section  i. 
identification  of  person. 

In  the  investigation  of  every  allegation  of  legal 
crime,  it  is  fundamentally  requisite  to  establish,  by 
direct  or  circumstantial  evidence,  the  identity  of  the 
individual  accused  as  the  party  who  committed  the 
imputed  offence.  It  might  be  concluded,  by  persons 
not  conversant  with  judicial  proceedings,  that  identi- 
hcation  is  seldom  attended  with  serious  difficulty  :  but 
such  is  not  the  case.  Illustrations  are  numerous 
to  show  that  what  are  supposed  to  be  the  clearest 
intimations  of  the  senses,  are  sometimes  fallacious  and 
deceptive, and  some  extraordinary  cases  haveoccurred 
of  mistaken  personal  identity  {a).  Hence  the  particu- 
larity, and  as  unretiecting  persons  too  hastily  conclude, 
the  frivolous  minuteness  of  inquiry,  by  professional 
advocates  as  to  the  ca2isa  scienticE,  in  cases  of  con- 
troverted identity,  whether  of  persons  or  of  things. 

Two  men  were  convicted  before  Mr.  Justice 
Grose  of  a  murder,  and  executed  ;  and  the  identity 
of  the  prisoners  was  positivel\'  sworn  to  by  a  lady 
who  was  in  company  wath  the  deceased  at  the  time 
of  the  robbery  and  murder  ;  but  several  years  after- 
wards two  men,  who  suffered  for  other  crimes, 
confessed  at  the  scaffold  the  commission  of  the 
murder  for  which  these  persons  were  executed  {b). 

(a)  Rex  V.  Wood  attd  Browft,  p.  41,  supra ;  Rex  v.  Colemafi,  pp.  103 
and  no,  supra.  In  Reg.  v.  Markliam  (C.  C.  C.  1856)  a  man  was  sen- 
tenced to  four  years'  penal  servitude  for  uttering  a  forged  cheque,  but 
was  subsequently  pardoned  on  the  conviction  of  the  real  offender. 

(b)  Rex  V.  Clinch  and  Mackley,  Paris  «&  Fonblanque,  Medical 
Jurisprudence,  vol.  iii.,  p.  144  (note),  and  Sess.  Papers,  1797. 


IDENTIFICATION    OF    PERSON.  157 

A  young  man  was  tried  at  the  Old  Bailey,  July, 
1824,  on  five  indictments  for  different  acts  of  theft. 
It  ai)i)eared  that  a  person  resenibl'no-  the  prisoner 
in  size  and  general  appearance  had  called  at  various 
shops  in  the  metropolis  tor  the  purpose  of  looking 
at  books,  jewellery,  and  other  articles,  with  the 
pretended  intention  of  makin:^  purchases,  but  made 
off  with  the  property  placed  before  him  while  the 
shopkeepers  were  engr.ged  in  looking  out  other 
articles.  In  each  of  these  cases  the  prisoner  was 
positively  identified  by  several  persons,  while  in 
the  majority  of  them  an  alibi  was  as  clearly  and 
pjsitively  established,  and  the  young  man  was 
proved  to  be  of  orderly  habits  and  irreproachable 
character,  and  under  no  temptation  from  want  of 
money  to  resort  to  acts  of  dishonesty.  Similar 
depredations  on  other  tradesmen  had  been  committed 
by  a  person  resembling  the  prisoner,  and  those 
persons  deposed  that,  though  there  was  a  consider- 
able resemblance  to  the  prisoner,  he  was  not  the 
person  who  had  robbed  them.  He  was  convicted 
upon  one  indictment,  but  acquitted  on  all  the  others; 
and  the  judge  and  jurors  who  tried  the  last  three 
cases  expressed  their  conviction  that  the  witnesses 
had  been  mistaken,  and  that  the  prosecutor  had  been 
robbed  by  another  person  resembling  the  prisoner. 
A  pardon  was  immediatel\  procured  in  respect  of  that 
charge  on  which  the  conviction  had  taken  place  {c) 

A  few  months  before  the  last-mentioned  case,  a 
respectable  young  man  was  tried  for  a  highway 
robbery   committed    at     Bethnal     Green,    in    which 

(f)  Rex  V.  Robittson,  O.B.  Sessions  Papers,  1824. 


158  EXTRINSIC    INCULPATORY    INDICATIONS. 

nei^^hboLirhuod  both  he  and  the  prosecutor  resided. 
The  prosecutor  swore  positively  that  the  prisoner 
■was  the  man  who  robbed  him  of  his  watch.  A 
youno;'  woman,  to  whom  the  prisoner  paid  his 
addresses,  gave  evidence  which  proved  a  complete 
alibi.  The  prosecutor  was  then  ordered  out  of 
court,  and  in  the  interval  another  young  man,  who 
awaited  his  trial  on  a  capital  charge,  was  introduced 
and  placed  by  the  side  of  the  prisoner.  The 
prosecutor  was  again  put  into  the  witness-box,  and 
addressed  by  the  prisoner's  counsel  thus  :  "  Remem- 
ber, the  life  of  this  young  man  depends  upon  your 
reply  to  the  question  I  am  about  to  put,  Will  you 
swear  again  that  the  young  man  at  the  bar  is  the 
person  who  assaulted  and  robbed  you?"  The 
\Yitness  turned  his  head  toward  the  dock,  when 
beholding  two  men  so  nearly  alike,  he  dropped  his 
hat,  became  speechless  with  astonishment  for  a  time, 
and  at  length  declined  swearing  to  either.  The 
prisoner  was  of  course  acquitted.  The  other  young 
man  was  tried  for  another  offence  and  executed  ; 
and  before  his  death  acknowledged  that  he  had 
committed  the  robbery  in  question  {d).  Upon  a 
trial  for  burglary,  where  there  was  conflicting 
evidence  as  to  the  identity  of  the  prisoner,  Mr. 
Baron  Bolland,  after  remarking  upon  the  risk 
incurred  in  pronouncing  on  evidence  of  identity 
exposed  to  such  doubt,  said  that  when  at  the  bar, 
he  had  prosecuted  a  woman  for  child- stealing, 
tracing   her   buying    ribbons    and    other  articles  at 

(if)  Paris  &  Fonblanque,  Medical  Jurisprudence,  vol.  iii.,  p.  143 
(note  b)  ;  Amos's  Great  Oyer  of  Poisoning  (the  trial  of  the  Earl  of 
Somerset),  at  p.  265. 


IDENTIFICATION    OF    PERSON.  159 

various  places  in  London,  and  at  last  into  a  coach  at 
Bishopsgate,  by  eleven  witnesses,  whose  evidence 
was  contradicted  by  a  host  of  other  witnesses,  and 
she  was  acquitted ;  and  that  he  had  afterwards 
prosecuted  the  very  woman  who  really  stole  the 
child,  and  traced  her  by  thirteen  witnesses.  "These 
contradictions,"  said  the  learned  judge,  "make  one 
tremble  at  the  consequences  of  relying  on  evidence 
of  this  nature,  unsupported  by  other  proof"  (e). 

As  incidental  to  the  establishment  of  identity,  the 
quantity  of  light  necessary  to  enable  a  witness  to 
form  a  satisfactory  opinion  has  occasionally  become 
the  subject  of  discussion.  A  man  was  tried  in 
January,  1799,  for  shooting  at  three  Bow  Street 
officers,  who,  in  consequence  of  several  robberies 
having  been  committed  near  Hounslow,  were  em- 
ployed to  scour  that  neighbourhood.  They  were 
attacked  in  a  post-chaise  by  two  persons  on  horseback, 
one  of  whom  stationed  himself  at  the  head  of  the 
horses,  and  the  other  went  to  the  side  of  the  chaise. 
One  of  the  officers  stated  that  the  night  was  dark, 
but  that  from  the  flash  of  the  pistols  he  could  dis- 
tinctly see  that  one  of  the  robbers  rode  a  dark-brown 
horse,  between  thirteen  and  fourteen  hands  high,  of 
a  very  remarkable  shape,  having  a  square  head  and 
thick  shoulders,  that  he  could  select  him  out  of  fifty 
horses,  and  had  seen  him  since  at  a  stable  in  Long 
Acre  ;  and  that  he  also  perceived  that  the  person 
at  the  side  glass  had  on  a  rough  shag  great-coat  {/). 

(e)  Rex  V.  Sawyer^  Reading  Assizes. 

(/)  Rex  V.  Haines,  Paris  &  Fonblanque,  Medical  Jurisprudence, 
vol.  iii.,  p.  144  (note). 


l6o  EXTRINSIC    INCULPATORY    INDICATIONS. 

Similar  evidence  was  given  on  a  trial  for  lii_L;h 
treason  (^')  ;  and  in  a  case  of  burglary  before  the 
Special  C(Miiinission  at  York,  January,  1 8 1  3,  a  witness 
stated  that  a  man  came  into  his  room  in  the  night, 
and  caused  a  light  by  striking  on  the  stone  floor  with 
something  like  a  sword,  which  produced  a  flash  near 
his  face,  and  enabled  him  to  observe  that  his  fore- 
head and  cheeks  were  blacked  over  in  streaks,  that 
he  had  on  a  dark-coloured  top-coat  and  a  dark- 
coloured  handkerchief,  and  was  a  large  man,  from 
which  circumstances  and  from  his  voice,  he  believed 
the  prisoner  to  be  the   same  man  [h).     In  another 

[g)  Rexv.  Byrne,  28  St.  Tr.  819. 

{h)  Rex  V.  Brook,  31  St.  Tr.  1135,  1 137;  but  see  "  Trait6  de  la 
Preuve,"  par  Desquiron,  274,  where  it  is  stated  that  after  the  con- 
demnation of  a  man  for  murder,  on  the  testimony  of  two  witnesses, 
who  deposed  that  they  recognized  him  by  the  light  from  the  discharge 
of  a  gun,  experiments  were  made,  from  which  it  appeared  that  such 
recognition  was  impossible. 

The  late  learned  Recorder  of  Birmingham  (M.  D.  Hill,  Esq.,  Q.C.) 
gave  the  Editor  the  particulars  of  a  remarkable  case,  in  which  he  was 
retained  as  counsel  for  a  prisoner  accused  of  shooting  at  a  young 
woman,  and  in  which  the  intended  victim  was  prepared  to  swear  that 
she  recognized  the  prisoner  by  the  flash  of  the  gun  which  was  fired 
at  her.  The  trial,  which  was  to  have  taken  place  at  the  Derby  Spring 
Assizes,  1840,  was  prevented  by  the  suicide  of  the  prisoner,  after  the 
business  of  the  Assizes  had  begun  ;  but  Mr.  Hill  was  present  at  a 
series  of  experiments  made  with  a  view  to  test  the  possibility  of  the 
alleged  recognition,  and  the  conclusion  he  drew  was  "  that  all  stories 
of  recognition  from  the  flash  of  gun  or  pistol  must  be  founded  upon  a 
fallacy."  There  were  many  circumstances  in  the  case  calculated  to 
produce  a  strong  impression  on  the  young  woman's  mind  that  the 
prisoner  was  her  assailant,  and  she  doubtless  mistook  the  impression 
so  created  for  ocular  demonstration.  On  the  other  hand,  it  is  asserted 
in  Taylor's  Medical  Jurisprudence  (4th  ed,  1894,  vol.  i.,  p.  729)  that 
from  information  which  the  author  was  able  to  collect  on  this  point, 
there  appears  to  be  no  do  bt  that  an  assailant  may  be  thus 
occasionally  identified.  No  doubt  it  depends  largely  upon  the 
quickness  of  individual  sight. 


IDENTIFICATION    OF    PERSON.  l6l 

case  a  gentleman  who  was  shot  at  while  driving  home 
in  his  gig,  and  wounded  in  the  elbow,  stated  that 
when  he  observed  the  flash  of  the  gun,  he  saw  that 
it  was  levelled  towards  him,  and  that  the  light  enabled 
him  to  recosfnize  at  once  the  features  of  the  accused. 
On  cross-examination  he  stated  that  he  was  quite 
sure  he  could  see  him,  and  that  he  was  not  mistaken 
as  to  his  identity  ;  but  the  prisoner  was  acquitted  (/). 

A  great  deal  of  the  value  of  direct  evidence  of 
identification  must  depend  upon  the  personal  appear- 
ance of  the  subject  of  identification.  There  are 
some  men  with  peculiarities  and  characteristics  so 
marked  that  only  a  very  careless  observer  (of  w^hom, 
however,  there  are  a  great  number)  could  well  be 
wronof  about  them.  There  are  others — and  a  far 
greater  number — whose  features  and  persons  are  of 
the  very  commonest  types,  and  who  are  hardly  dis- 
tinguishable by  a  casual  observer  from  hundreds  to 
be  met  every  day  in  the  streets.  The  physical 
characteristics  of  the  subject  of  identification  may  be 
of  the  one  category  or  the  other,  or  may  belong  to 
any  one  of  the  infinite  gradations  between  the 
two  extremes.  Fortunately  the  tribunal  has  the 
advantage  of  seeing  the  person  sought  to  be  iden- 
tified, and  the  foregoing  considerations  can  always 
be  brought  home  to  the  minds  of  the  jurors. 

It  may  not  be  out  of  place  to  mention  a  remarkable 
case  which  illustrates  the  difficulties  surroundino-  the 
determination    of   personal    identity.      A   man    was 

(z)  Reg.  V.  White.,  Croydon  Summer  Assizes,  1839.     Mentioned  in 
Taylor's  Medical  Jurisprudence,  4th  ed.  1894,  vol.  i.  p.  729. 

C.E.  M 


l62  EXTRINSIC    INCULPATORY    INDICATIONS. 

tried  at  Manchester  for  housebreaking.  He  was 
convicted.  A  part  of  the  indictment  alleged  that 
he  had  been  previously  convicted  of  a  similar 
offence.  A  warder  from  the  convict  prison  from 
which  it  was  alleged  that  the  prisoner  had  been  dis- 
charged on  completing  his  former  sentence,  deposed 
that  the  prisoner  was  the  same  man,  and  that  he 
had  served  his  former  sentence  as  James  Williams. 
The  prisoner,  who  vehemently  protested  that  a 
mistake  had  been  made,  elicited  from  the  warder 
that  upon  the  discharge  of  James  Williams  a  list 
had  been  made  of  the  marks  of  identification  upon 
him.  The  list  was  produced,  and  the  gaol  surgeon 
was  requested  to  take  the  prisoner  to  the  cells 
and  report  what  marks  he  had  upon  him.  He 
returned  with  a  list  which  differed  very  materially 
from  the  warder's  list,  containing  some  obvious  marks 
which  were  not  in  the  warder's  list,  and  not  con- 
taining others  which  were  in  that  list.  In  particular 
the  prisoner  had  upon  his  stomach  a  large  mark 
of  discolouration  ("  probably  congenital,"  said  the 
surgeon)  which  was  not  in  the  warder's  list.  Photo- 
graphs of  James  Williams  were  produced  by  the 
w^arder,  and  at  the  request  of  the  jury  the  prisoner 
was  placed  in  various  positions,  and  under  various 
lights,  for  the  purpose  of  comparison.  In  the  end 
the  jury  found  that  the  prisoner  was  not  James 
Williams,  and  he  received  the  mitigated  sentence 
due  to  a  first  conviction  for  an  offence  of  this  kind. 
When  in  prison  he  memoralized  the  Home  Secre- 
tary, complaining  of  some  action  on  the  part  of  the 
prison  authorities.  This  led  to  an  investigation,  in 
the  course  of  which  a  petition  from  James  Williams, 


IDENTIFICATION    OF    PERSON.  163 

dated  from  Chatham  convict  prison,  was  found  in 
the  archives  of  the  Home  Office,  and  both  petitions 
were  sent  by  the  Home  Secretary  to  the  judge  who 
tried  the  case.  There  was  not  then  room  for  the 
smallest  doubt  as  to  the  identity  of  the  prisoner 
with  James  WilHams.  Not  only  were  the  two  hand- 
writings identical,  but  there  was  a  peculiar  vein  of 
thought  and  character  running  through  both  petitions 
which  could  hardly  by  any  possibility  have  been 
common  to  two  different  persons.  The  man  was  of  the 
kind  known  to  seamen  as  "  sea  lawyers,"  and  with  a 
very  peculiar  vein  of  querulousness  eminently  charac- 
teristic. There  is  not  the  slightest  doubt  that  the 
warder  was  right  in  his  identification  [j).  The  editor 
is  glad  to  be  able  to  add  that  during  his  experience 
of  between  seventeen  and  eighteen  years  on  the 
Bench,  he  has  met  with  but  one  instance  of  mistake 
upon  the  question  of  previous  conviction  (k).  Upon 
his  sending  for  the  offending  witness,  and  speaking 
to  him  of  the  great  gravity  of  such  a  mistake,  the 
man  (a  warder  from  one  of  the  large  London 
prisons)  said  in  extenuation,  "  My  lord,  I  identify 
three  thousand  a  year!" 

The  liability  to  mistake  must  necessarily  be  greater 
where  the  question  of  identity  is  matter  of  deduction 
and  inference,  than  where  it  is  the  subject  of  direct 
evidence.  The  circumstances  from  which  identity 
may  be  thus  inferred  are  innumerable,  and  admit 
of  only  a  very  general  classification. 

(/)  /?.  V.  Henry  Evans,  Manchester  Winter  Assizes,  27th  January, 
1885,  coram  Wills,  J. 
ik)  R.  V.  Helsham,  Liverpool  Autumn  Assizes,  12th  November,  1885. 

M    2 


164  EXTRINSIC    INCULPATORY    INDICATIONS. 

Family  likeness  has  often  been  insisted  upon  as  a 
reason  lor  inOtrrini;-  parentao^e  and  identity.  In  the 
DouLi^las  case  Lord  Mansfield  said  :  "  I  have  always 
considered  likeness  as  an  argument  of  a  child's  being 
the  son  of  a  parent ;  and  the  rather  as  the  distinction 
between  individuals  in  the  hunian  species  is  more 
discernible  than  in  other  animals  ;  a  man  may  sur- 
vey ten  thousand  people  before  he  sees  two  faces 
perfectly  alike,  and  in  an  army  of  a  hundred  thou- 
sand men  every  one  may  be  known  from  another. 
If  there  should  be  a  likeness  of  feature,  there  may 
be  a  discriminancy  of  voice,  a  difference  in  the 
gesture,  the  smile,  and  various  other  things  ;  whereas 
a  family  likeness  runs  generally  through  all  these,  for 
in  everything  there  is  a  resemblance,  as  of  features, 
size,  attitude,  and  action  "  (/).  But  in  a  case  in 
Scotland,  where  the  question  was  v/ho  was  the  father 
of  a  certain  woman,  an  allegation  that  she  had  a 
strong  resemblance  in  the  features  of  the  face  to  one 
of  the  tenants  of  the  alleged  father,  was  held  not  to 
be  relevant,  as  being  too  much  a  matter  of  fancy 
and  loose  opinion  to  form  a  material  article  of  evi- 
dence (;//).  In  another  Scotch  case,  however — a 
trial  for  child-murder — it  was  permitted  (after  proof 
that  the  child  had  six  toes)  to  ask  a  witness  whether 
any  members  of  the  prisoner's  family  had  super- 
numerary fingers  and  toes  ;  though  the  inference  to 
be  deduced  was  evidently  only  matter  of  opinion  {n). 

(/)  2  Collectanea  Juridica,  402  ;  Beck's  Medical  Jurisprudence,  7th  ed. 
p.  402.  And  see  Report  of  the  case  of  Doe  d.  Day  v.  Day,  Trial  by 
Ejectment  involving  a  question  of  Legitimacy,  &c.,  Huntingdon  Assizes, 
July,  1797.     Printed  at  Birmingham,  1823. 

(;«)  Rictledge  v.  CarriitJicrs,  Tait's  Law  of  Ev.  2nd  ed.  p.  441. 

(«)  I  Dickson's  Law  of  Ev.  in  Scotland,  §  19,  p.  14. 


IDENTIFICATION    OF    PERSON.  165 

A  case  of  capiuil  conviction  occurred  a  few  years 
ago  where  the  prisoner  had  given  his  portrait  to 
a  youth,  which  enabled  the  police,  after  watching 
a  month  in  London,  to  recognize  and  apprehend 
him(6')  ;  and  photographic  likenesses  now  frequently 
lead  to  the  identification  of  offenders.  It  is  well 
known  that  shepherds  readily  identify  their  sheep, 
however  intermingled  with  others  (/>) ;  and  offenders 
are  not  unfrequently  recognized  by  the  voice  (ry). 
Circumstances  frequently  contribute  to  identification, 
by  confining  suspicion  and  limiting  the  range  of 
inquiry  to  a  class  of  persons  ;  as  where  crimes  have 
been  committed  by  left-handed  persons  (r);  or  where, 
notwithstanding  simulated  appearances  of  external 
violence  and  infraction,  the  offenders  must  have 
been  domestics ;  as  in  a  case  of  two  persons 
convicted  of  murder,  who  created  an  alarm  from 
within  the  house ;  but  upon  whom  nevertheless 
suspicion  fell,  from  the  circumstance  that  the  dew 
on  the  grass  surrounding  the  house  had  not  been 
disturbed  on  the  morning  of  the  murder,  which  must 
have  been  the  case  had  it  been  committed  by  any 


{0)  Rexv.  Arden,  8  London  Medical  Gazette,  36  ;  but  identification  by 
photograph  alone  is  regarded  with  suspicion,  and  the  Court  will  not 
act  upon  it  except  in  very  exceptional  circumstances.  Frith  v.  Frith, 
1896,  P.  74- 

{p)  Rexv.  Oliver,  Syme's  Justiciary  Report  (Scotch),  p.  224. 

{q)  Rexv.  Brook,  31  St.  Tr.,  cols.  11 24,  1129,  1137. 

{r)  Rex  V.  Oketnan  aftd  others,  14  St.  Tr.,  col.  1324;  Rex  v. 
Richardson — see  pp.  384-389,  iufra,  and  in  Rex  v.  Patch,  which  is 
given  at  length  at  pp.  390-395,  infra.  One  of  the  circumstances  which 
connected  the  accused  with  the  crime  was  that  the  murderer  must 
have  hidden  his  body  behind  the  door,  and  fired  the  shot  with  his  left 
hand,  or  he  would  have  been  seen  ;  and  the  prisoner  was  proved  to  be 
left-handed. 


l66  EXTRINSIC    INCULPATORY    INDICATIONS. 

Other  than  inmates  (^).  On  the  trial  of  a  gentle- 
man's valet  for  the  murder  of  his  master,  it  appeared 
that  there  were  marks  on  the  back  door  of  the  house, 
as  if  it  had  been  broken  into,  but  the  force  had  been 
applied  from  within,  and  the  only  way  by  which  this 
door  could  be  approached  from  the  back,  was  over 
a  wall,  covered  with  dust  which  lay  undisturbed,  or 
over  some  tiling,  so  old  and  perished  that  it  would 
not  have  borne  the  weight  of  a  man  ;  so  that  the 
appearances  of  burglarious  entry  must  have  been 
contrived  by  a  domestic.  Other  facts  conclusively 
fixed  the  prisoner  as  the  murderer  (/). 

Identification  is  often  satisfactorily  inferred  from 
the  correspondence  of  fragments  of  garments,  or  of 
written  or  printed  papers,  or  of  other  articles  belong- 
ing to  or  found  in  the  possession  of  parties  charged 
with  crime,  with  other  portions  or  fragments  dis- 
covered at  or  near  the  scene  of  crime,  or  otherwise 
related  to  the  corpus  delicti  (?/) ;  or  by  means  of 
wounds  or  marks  inflicted  upon  the  person  of  the 
offender. 

A  coloured  man,  named  Allen,  was  charged  at 
Cardiff  Assizes,  in  1889,  with  the  murder  of  George 
Kent.  He  was  identified  and  convicted  upon  the 
following  evidence : — The  dead  man's  wife  saw  that 
her  husband's  assailant  was  a  black  man,  and  fired 
a  revolver  at  him.  He  fell;  but  afterwards  escaped, 
A   few  hours    later  the  prisoner  was  arrested,  and 

{s)  Rex  V.   Swan  and  Jefferys,   18   St.   Tr.,   col.    1194;    and    see 
Mascardus,  De  Probationibus,  Concl.  cclxxii. 
(/)  Reg.  V.  Coiirvoisier.     See  p.  398,  infra. 
iyU.  See  Mascardus,  De  Probationibus  Concl.  Dcccxxxi. 


IDENTIFICATION    OF    PERSON.  167 

a  bullet  extracted  from   his  thigh  which  fitted  the 
empty  cartridge  case  (x). 

A  woman  who  was  tried  for  setting  the  prose- 
cutor's ricks  on  fire,  had  been  met  near  the  ricks, 
about  two  hours  after  midnight,  and  a  tinder-box 
was  found  near  the  spot  containing  some  unburnt 
cotton  rag;  also,  a  piece  of  a  woman's  neckerchief  was 
found  in  one  of  the  ricks  where  the  fire  had  been 
extinguished.  The  piece  of  cotton  in  the  tinder-box 
was  examined  with  a  lens,  and  the  witness  deposed 
that  it  was  of  the  same  fabric  and  pattern  as  a  gown 
and  some  pieces  of  cotton  print  taken  from  the 
prisoner's  box  at  her  lodgings ;  that  a  neckerchief 
taken  from  a  bundle  belonging  to  the  prisoner, 
found  in  her  lodgings,  corresponded  with  the  colour, 
pattern,  and  fabric  of  the  piece  found  in  the  rick, 
and  that  they  had  both  belonged  to  the  same 
square ;  and  from  the  breadth  of  the  hemming,  and 
the  distance  of  the  stitches  on  both  pieces,  as  well 
as  from  the  circumstance  that  both  pieces  were 
hemmed  with  black  sewing- silk  of  the  same 
quality  (whereas  articles  of  that  description  were 
generally  sewn  with  cotton),  he  inferred  that  they 
were  the  work  of  the  same  person.  The  prisoner 
was  capitally  convicted,  but,  there  being  reason  to 
believe  that  she  was  of  unsound  mind,  she  was 
reprieved  {y  ). 

A  man  was  connected  with  the  robbery  of  a  bank, 
by  the  fragment  of  a  key  found  in  the  lock  of  one  of 

(x)  Reg.  V.  Allen.     See  The  Times,  March  19th,  18 89. 

{j)  Rex  \.  Hodges,^  SiiwicV.  Spring  Assizes,  \2>iZ,  coram  Garrow,B. 


l68  EXTRINSIC    INCULPATORY    INDICATIONS. 

the  safes,  wliicli  an  Ironmoncrer  proved  that  he  had 
shortly  before  made  for  the  prisoner  (z)  ;  and  a 
servant-man  was  connected  with  the  larceny  of  a 
number  of  sovereigns,  by  the  discovery,  in  the  lock 
of  a  bureau  which  had  been  broken  open,  of  a  small 
piece  of  steel  which  had  formed  part  of  the  blade 
of  a  knife  belonging  to  him  (a).  A  young  woman 
was  tried  at  Warwick  Summer  Assizes,  1887,  for  the 
murder  of  her  illegitimate  female  child.  She  had 
been  staying  at  the  house  of  her  mother,  Charlotte 
Dodd,  at  Wellesbourne,  a  few  miles  from  Warwick. 
She  had  the  child,  then  about  six  weeks  old,  with 
her.  On  the  26th  April,  carrying  her  child,  she 
walked  with  her  mother  to  Warwick,  where  they 
stayed  some  little  time  at  an  inn.  Not  long  after- 
wards the  prisoner  was  seen  standing  near  a  bridge 
over  a  little  watercourse  on  the  Kenilworth  road, 
about  two  miles  from  W^arwick.  Later  in  the  day 
she  was  in  Warwick  again,  without  the  baby.  Her 
account  was  that  she  had  taken  it  to  Kenilworth, 
where  "the  young  man"  lived  ;  that  the  grandparents 
had  taken  the  child,  and  the  grandfather  had  driven 
her  back  to  Warwick  in  his  trap.  *'  The  young 
man"  did  live  at  Kenilworth,  but  all  the  other  state- 
ments were  false.  On  the  28th  April  the  body  of 
a  female  child  was  found  in  the  watercourse  and 
under  the  brido^e.  It  was  not  known  whose  child 
it  was,  and,  although  an  inquest  was  held,  the 
child  was  buried  without  being  identified — and  when 

(z)  Rex  V.  Heath,  Alison's  Principles  of  the  Criminal  Law  of 
Scotland,  vol.  i.  p.  318. 

{a)  Reg.  V.  O-iimp,  Stafiford  Summer  Assizes,  185 1,  coram 
Erie,  J. 


IDENTIFICATION    OF    PERSON.  169 

afterwards  exhumed,  on  the  12th  May,  it  was  very 
much  decomposed.  The  child's  skull  was  fractured 
in  such  a  way  as  to  render  it  improbable  that  death 
was  accidental.  There  were  many  circumstances 
tending  to  incriminate  the  prisoner,  if  the  child  found 
was  hers.  The  evidence  to  show  that  it  was  her  child 
was  as  follows:  The  child  was  wrapped  in  a  piece 
of  brown  paper,  and  tied  round  with  very  fine  braid. 
In  the  mother's  house  was  found  a  piece  of  brown 
paper  corresponding-  in  quality  and  appearance  with 
that  in  which  the  child  was  wrapped.  On  both 
pieces  of  paper  were  a  number  of  stitches  of  black 
thread,  which  had  been  cut.  On  the  paper  in  which 
the  child  was  wrapped  was  written,  "  Dodd,  passenger 
to  Milverton" — faint,  but  distinctly  visible.  Some 
braid  was  found  in  the  mother's  house,  discoloured, 
but  in  all  other  respects  corresponding  with  the 
braid  with  which  the  child's  body  was  tied  up.  No 
clothes  were  found  with  the  child.  The  prisoner  had 
brought  the  clothes  back  to  Warwick,  saying  that 
the  grandparents  would  not  have  them,  as  they  had 
plenty  ;  which  was  false.  Baby's  clothes  were  found 
in  the  mother's  house.  The  prisoner  was  convicted. 
The  mother  was  tried  with  her,  but  acquitted  [d). 
An  attempt  to  murder,  by  sending  to  the  prosecutor 
a  parcel,  consisting  of  a  tin  case  containing  several 
pounds  of  gunpowder,  so  packed  as  to  explode  by 
the  ignition  of  detonating  powder,  enclosed  between 
two  pieces  of  paper,  connected  with  a  match  fastened 
to  the  lid  and  bottom  of  the  box,  was  brought  home 
to  the  prisoner  by  the  circumstance  that  underneath 

{b)  R.   V.  Fanny  Goldsby  and  Chai-loite  Dodd,  August  and,   1887, 
coram  Wills,  J. 


170  EXTRINSIC    INCULPATORY    INDICATIONS. 

the  outer  covcriiiLj  of  brown  paper  was  fuund  a 
jjortion  of  the  Leeds  InUlliocuccr  of  the  5th  of  Jul)-, 
1832,  the  remaininsj^  portion  of  which  identical  paper 
was  found  in  his  house  (<:).  In  other  cases  identifi- 
cation has  been  established  by  the  correspondence 
of  the  wadding  of  a  pistol,  which  stuck  in  a  wouiid, 
and  was  part  of  a  ballad,  which  corresponded  with 
another  part  found  in  the  prisoner's  possession  {d)  ; 
and  by  the  like  correspondence  of  the  waddino-  of 
firearms  with  part  of  a  newspaper  of  which  the 
remainder  was  found  in  the  possession  of  the 
prisoner  {e), 

A  Spaniard  was  convicted  of  having  occasioned 
a  grievous  injury  to  an  officer  of  the  post-office,  by 
means  of  several  packets  containing  fulminating 
powder,  put  by  him  into  the  post-office,  one  of 
which  exploded  in  the  act  of  stamping.     The  letters, 

{c)  Rex  V.  Motmtford,  reported  on  a  point  of  law  in  i  Moo.  C.  C.  441. 
(<^)  Ex  relatione  Lord  Eldon,  when  Lord  Chancellor,  in  the  House 
of  Lords,  November  loth,  1820.  See  Hansard  Parliamentary  Debates, 
New  Series,  vol.  iii.,  at  col.  1740.  Probably  Lord  Eldon  was  referring  to 
the  case  of  John  Toms,  tried  at  Lancaster  Assizes,  23rd  March,  1784,  for 
the  murder  of  Edward  Culshaw,  at  Present.  The  Editor  is  indebted  to 
E.  B.  Dawson,  Esq.,  J. P.,  chairman  of  the  Visiting  Justices,  for  the  follow- 
ing extract  from  a  book  kept  by  the  Governor  of  Lancaster  Castle,  and 
now  among  the  registers  of  that  prison  : — "Assizes,  March  23rd,  1784, 
John  Toms  ...  18  years  of  age  .  .  .  convicted  and  executed  March 
29th,  1784.  N.B. — A  very  extraordinary  fact  came  out  respecting  the 
murder  upon  which  Toms  was  convicted,  viz.,  he  had  bought  a  ballad, 
and  tore  part  of  it  off  for  a  wad  for  the  pistol.  This  wad  was  found  in 
the  deceased's  head,  which  exactly  corresponded  with  the  part  left  in  his 
pocket."  The  note  ends  as  follows  :  '■''  Metn. — This  Assize  lasted  from 
March  23rd  to  April  3rd.  It  may  be  properly  called  the  Black  Assize, 
19  being  assigned  for  capital  offences  ;  6  of  them  received  sentence  of 
death,  and  3  were  executed,  viz.,  Toms,  Heys,  and  Dugdale." 
(*)  Keg.  v.  Cotirinage  and  Mossingham,  see  p.  223,  infra. 


IDENTIFICATION    OF    PERSON.  I7I 

which  were  in  Spanish,  and  one  of  them  subscribed 
with  the  prisoner's  name,  were  addressed  to  persons 
at  Havannah  and  Matanzas,  who  appeared  to  be  the 
objects  of  the  writer's  mahij^nant  intentions.  There 
was  no  proof  that  the  letters  were  in  the  prisoner's 
handwriting,  but  he  was  proved  to  have  landed  at 
Liverpool  on  the  20th  of  September,  and  to  have 
put  several  letters  into  the  post-otiice  on  the  evening 
of  the  22nd,  the  explosion  having  occurred  on  the 
24th  ;  and  there  was  found  upon  his  person  a  seal 
which  corresponded  with  the  impression  upon  the 
letters,  which  circumstance  (though  there  were  other 
strong  facts)  was  considered  as  conclusive  of  his 
guilt,  and  he  was  accordingly  convicted  and  sen- 
tenced to  two  years'  imprisonment  {/).  On  a  trial 
for  the  forgery  of  a  document,  the  impression  of  a 
seal  attached  to  it  corresponded  with  another  im- 
pression upon  a  packet  of  papers  produced  in 
evidence  by  the  prisoner,  and  both  impressions 
were  taken  from  a  seal  in  the  possession  of  a 
member  of  his  family  [g). 

The  impressions  of  shoes,  or  of  shoe-nails,  or  of 
other  articles  of  apparel,  or  of  patches,  abrasions,  or 
other  peculiarities  therein,  discovered  in  the  soil  or 
clay,  or  snow,  at  or  near  the  scene  of  crime,  recently 
after  its  commission,  frequently  lead  to  the  identi- 
fication and  conviction  of  the  guilty  parties  (//). 
The  presumption    founded    on  these  circumstances 

(/)  Rex  V.  Palayo,  Liverpool  Midsummer  Quarter  Sessions,  1836. 

{g)  Rex  V.  Humphreys^  see  pp.  19S-201,  infra. 

{It)  Menochius,  De  Prssumptionibus,  lib.  v.  praes.  31  ;  Mascardus, 
De  Probationibus,  Concl.  Dcccxxxi.  ;  Traite  de  la  Preuve,  par  Mitter^ 
maier,  c.  57. 


172  EXTRINSIC    IN'CULPATORY    INDICATIONS. 

has  been  appealed  to  by  mankind  in  all  ages, 
and  in  inquiries  of  every  kind,  and  is  so  obviously 
the  dictate  of  reason,  if  not  of  instinct,  that  it 
would  be  superlluous  to  dwell  upon  its  imptjrtance. 
The  following  remarkable  cases  illustrate  the  weight 
of  such  mechanical  facts,  when  connected  wiih  other 
concurring  circumstances  leading  to  the  same  result. 

A  farm  labourer  was  tried  for  the  murder  of  a 
young  woman,  a  domestic  servant  living  in  the  same 
service.  A  little  before  seven  in  the  evening  she 
went  on  an  errand  to  take  some  barm  to  a  neigh- 
bouring house,  about  200  yards  distant,  but  as  it 
was  not  wanted,  she  did  not  leave  it,  and  set  out 
about  seven  o'clock  on  her  way  back.  Being  about 
to  leave  her  situation  that  evening,  she  had 
requested  the  prisoner  to  carry  her  box  to  the 
gardener's  house,  about  a  quarter  of  a  mile  distant. 
Soon  after  she  set  out  on  her  errand,  the  prisoner 
followed  her,  carrying  her  box,  but  did  not  reach 
the  gardener's  cottacre  until  after  eitrht.  On  the 
following  morning  she  was  found,  lying  on  her  back, 
drowned  in  a  shallow  pit  near  a  footpath  leading 
from  her  master's  house  to  the  gardener's  cottage. 
There  were  marks  of  violence  on  her  person,  and 
one  of  her  shoes  and  the  jug  in  which  she  had 
carried  the  barm  were  found  near  the  pit.  Barm 
was  also  found  spilt  near  the  spot,  and  there  were 
marks  of  much  trampling ;  and  chaff  and  grains  of 
wheat  were  scattered  about,  which  were  material 
facts,  the  prisoner  having  been  engaged  the  day 
before  in  threshing  wheat.  Impressions  were  found 
in   the  soil,  which  was  stiff   and   retentive,   of    the 


IDENTIFICATION    OF    PERSON.  I73 

knee  of  a  man  who  had  worn  breeches  made  of  striped 
corduroy,  and  patched  with  the  same  material,  but 
the  patch  was  not  set  on  straiu^ht,  the  ribs  of  the 
patch  meeting  the  hollows  of  the  garment  into 
which  it  had  been  inserted ;  which  circumstances 
exactly  corresponded  with  the  prisoner's  dress.  The 
prisoner  denied  that  he  had  seen  the  deceased  after 
she  left  the  house  on  her  errand,  and  stated  that  he 
had  been  in  the  interval  before  his  arrival  at  the 
gardener's  house  in  company  with  an  acquaintance 
whom  he  had  met  with  on  the  road  ;  but  it  was 
proved  that  the  person  referred  to,  at  the  time  in 
question,  was  at  work  thirty  miles  off  He  was 
convicted  and  executed  (/). 

A  man  was  tried  at  Stafford  Summer  Assizes, 
1844,  for  the  murder  of  an  elderly  woman,  the 
housekeeper  of  an  old  gentleman  at  Wednesbury. 
The  only  inmates  of  the  house  were  the  old  gentle- 
man, a  man-servant,  and  the  deceased  woman.  Her 
master  went  from  home  on  a  Saturday  morning, 
about  half-past  nine  o'clock,  as  he  was  accustomed 
to  do  on  that  day  of  the  week,  leaving  the  deceased 
in  the  house  alone.  Upon  his  return,  a  quarter 
before  two,  he  found  her  dead  body  in  the  brew- 
house,  her  throat  having  been  cut  and  the  house 
plundered.  The  murder  had  probably  been  com- 
mitted about  a  quarter  past  ten  o'clock,  as  the 
butcher  called  at  that  time  and  was  unable  to  obtain 
admittance,  and  about  the  same  time  a  scream  was 
heard.  Traces  were  found  of  a  man's  rieht  and  left 
footsteps  leading  from  a  stable  In  a  small  plantation 

(/)  Rex  V.  Brindley,  Warwick  Spring  Assizes,  18 16. 


174  EXTRINSIC    INCULPATORY    INDICATIONS. 

near  the  front  of  the  house,  from  which  any  person 
leaving  the  house  by  the  front  door  could  be  seen  ; 
and  similar  footsteps  were  found  at  the  back  of  the 
house  leadint]^  from  thence  across  a  ploughed  field 
for  a  considerable  distance  in  a  sequestered  direction, 
until  they  reached  a  canal  bank,  where  they  were 
lost  on  the  hard  ground.  From  the  distance  between 
the  steps  at  the  back  of  the  house  and  in  the  ploughed 
t'leld,  the  person  whose  footsteps  they  were  must  have 
been  running  ;  the  impressions  were  those  of  right 
and  left  boots,  and  were  very  distinct,  there  having 
been  snow  and  rain,  and  the  ground  being  very 
moist.  The  right  footprints  had  the  mark  of  a  tip 
round  the  heel  ;  and  the  left  footprints  had  the 
impression  of  a  patch  fastened  to  the  sole  with  nails 
different  in  size  from  those  on  the  sole  itself;  and 
altoofether  there  were  four  different  sorts  of  nails  on 
the  patch  and  soles,  and  in  some  places  the  nails 
were  missing.  Suspicion  fell  upon  the  prisoner, 
who  had  formerly  lived  as  fellow-servant  with  the 
deceased,  and  who  had  been  seen  by  several  persons 
in  the  vicinity  of  the  house  a  little  before  ten 
o'clock.  Upon  his  apprehension  on  the  following 
morning,  his  boots,  trousers,  shirt,  and  other  garments 
were  found  to  be  stained  with  blood,  and  the  trousers 
had  been  rubbed  or  scraped,  as  if  to  obliterate 
stains.  The  prisoner  wore  right  and  left  boots, 
which  were  caretully  compared  with  the  footprints  ; 
by  making  impressions  of  the  soles  in  the  soil  about 
six  inches  from  the  original  footmarks  ;  which  exactly 
corresponded  as  to  the  patch,  the  tip,  and  the 
number,  shape,  sizes,  and  arrangement  of  the  nails. 
The    boots    were   then    placed    lightly    upon    the 


IDENTIFICATION    OF    PERSON.  I75 

orloinal  impressions,  and  here  again  the  correspon- 
dence   was    exact.       There    could   therefore  be    no 
doubt  that  the  impressions  of  all  these  footsteps  had 
been  made  by  the  prisoner's  boots.      He  had  been 
seen  about  a  quarter   before   eleven  on  the  mornincr 
of  the  murder  with  something  bulky  under  his  coat, 
near  the  place  where  the  footsteps  were  lost  on  the 
hard  ground,   and   proceeding    thence   towards   the 
town  of  Wednesbury.      At  about  eleven  o'clock  he 
called  at  the  "  Pack  Horse  "  in  that  place,  not  far 
from  the  house,  where  he  took  something  to  drink 
and  immediately  left,  and  at  a  little  after  twelve  he 
called  at  another  public-house,  which  was  also  near 
the  scene  of  the  murder,  where  he  stayed  some  time 
smoking  and  drinking.      In  the  interval  between  the 
times  when  the  prisoner  had  called  at  these  public- 
houses,   he  was  seen   at  some  distance  from   them, 
near  an  old  whimsey  ;  and  he  was  subsequently  seen 
returning  in  the  opposite  direction  towards  Wednes- 
bury.     Five   days  afterwards,  upon  further  search, 
the  same  footprints  were  discovered  on  a  footpath 
leading    in   a   direction    from    the    "Pack     Horse" 
towards  the  whimsey,  where  two  bricks  appeared  to 
have  been  placed  to  stand  upon,  close  to  which  was 
found  an  impression  of  a  right  foot  corresponding 
with    the     impressions     which     had     been     before 
discovered  ;     and    in    the    flue    was     concealed    a 
handkerchief  in  which  were  tied  up  a  pair  of  trousers 
and  waistcoat,  part  of  the  property  stolen  from  the 
house.     The  prisoner  must  have  availed  himself  of 
the  interval  between  the  times  when  he  was  seen  at 
the  two  public-houses,  to  secrete  the  stolen  garments 
in   the  whimsey,  and  thus  to  divest  himself  of  the 


176  EXTRINSIC    INCULPATORY    INDICATIONS. 

bulky  articles  \vhich  had  been  observed  und('r  his 
coat  on  his  arrival  at  the  "  Pack  Horse."  The  jury, 
after  deliberating  several  hours,  returned  a  verdict  of 
guihy,  and  he  was  executed  pursuant  to  his  sentence, 
having-  previously  made  a  confession  of  his  guilt  (/-'). 

A  young  man  was  tried  at  Taunton  for  the 
murder  of  a  little  girl.  It  was  a  murder  of  the  kind 
known  some  years  ago  as  of  the  "  Jack  the  Ripper" 
order.  The  child  was  last  seen  going  in  the  direction 
of  her  home.  Her  way  was  througli  a  field,  across 
which  lay  a  footpath.  On  the  further  side  of  the 
field  was  a  ditch,  the  soil  being  of  clay.  In  this 
ditch  her  body  was  found,  cruelly  mutilated.  About 
the  time  when  the  murder  must  have  been  committed, 
a  man  was  seen  in  the  ditch.  From  a  variety  of 
circumstances,  suspicion  fell  upon  the  prisoner. 
Casts  were  taken  of  the  footprints  in  the  ditch  and 
close  to  the  child's  body.  They  were  not  of  the 
best  ;  but  the  prisoner's  boots  had  a  few  individual 
peculiarities,  consisting  chiefly  of  the  absence  of  nails 
in  one  place  or  another  from  several  of  the  rows  on 
each  boot.  Careful  measurements  were  made  with 
a  pair  of  compasses,  and  there  was  such  a  mass  of 
correspondences  between  existing  nails  and  absent 
nails  in  boots  and  footmarks,  and  such  exact  equality 
in  the  distances  between  nails  which  had  been  worn 
so  as  to  present  peculiarities  and  the  places  where 
nails  were  absent  from  both  boots  and  casts,  that  it 
was  impossible  to  believe  that  the  correspondences 

{k)  Reg.  V.  Beards,  coram  Atcherley,  Serjt. ;  and  see  other 
cases  of  this  kind,  Rex  v.  Ricliardson,  see  pp.  3S4-389,  ijtjra;  Rex  v. 
Spiggoit  and  others,  4  Cel.  Tr.  446. 


IDENTIFICATION    OF    PERSON.  I77 

were  accidental.      The  prisoner  was  convicted  and 
executed,  having  confessed  his  guilt  (/). 

In  an  American  case,  a  prisoner  charged  with 
arson  had  turned  his  horse's  shoes  round  after 
arriving  at  the  house,  so  as  to  create  the  appearance 
of  two  persons  having  proceeded  to  and  from  it ;  but 
the  artifice  was  the  means  of  deteciion,  since  the 
removal  of  the  shoes  was  indicated  by  the  recent 
marks  of  nails  on  the  horse's  foot,  and  afforded  one 
of  the  most  emphatic  of  the  indications  by  which  the 
prisoner's  guilt  was  established. 

To  o-uard  against  error,  it  is  manifest  that  the 
recency  of  the  discovery  and  comparison  of  the 
impressions,  relatively  to  the  time  of  the  occurrence 
of  the  corpus  delicti,  and  before  other  persons  may 
have  resorted  to  the  spot,  is  of  the  highest  import- 
ance. So,  the  accuracy  of  the  comparison  is 
obviously  all-important,  and  therefore  as  a  further 
means  of  guarding  against  mistake,  it  must  be  shown 
that  the  shoes  were  compared  with  the  footmarks 
before  they  were  put  on  them  {vi)  ;  and  where  the 
comparison  had  not  been  previously  made,  Mr. 
Justice  Parke  desired  the  jury  to  reject  the  whole 
inquiry  relating  to  the  identification  by  shoe-marks  (;/). 
Nor  must  it  be  overlooked,    that,  even   where  the 

(/)  Reg.  V.  Reyland,  Taunton  Winter  Assizes,  February  20th,  iS8g, 
coram  Wills,  J. 

(;/z)  Rex  v.  Heafon,  cited  in  Rex  v.  Shaw,  i  Lewin,  C.  C.  116. 

{n)  Rex  V.  Shaiu,  ibid.     The  boots  or  shoes  never  ought  to  be  put 

into  the  footprints  at  all.      The  impressions  for  comparison  should  be 

made  by  the  side  and  at  a  sufficient  distance  from  those  in  question. 

Where  the  character  of  the  soil  and  the  interval  of  time  permit  such  a 

C.E.  N 


178  EXTRINSIC    INCULPATORY    INDICATIONS. 

identity  of  footmarks  has  been  established  beyond 
all  doubt,  they  may  have  Ijeen  fabricated  with 
the  intention  of  diverting  suspicion  from  the  real 
offender,  and  fixing  it  upon  an  innocent  party  {(?)  ; 
and  that  in  other  respects  this  kind  of  evidence  may 
lead  to  erroneous  interpretation  and  inference  (/). 

The  identification  of  human  remains  is  attended 
with  peculiar  difficulties  consequent  upon  the 
changes  produced  by  death,  which  will  be  considered 
in  a  subsequent  part  of  this  essay. 

Section  2, 

identification  of   articles  of  property. 

The  identification  of  articles  of  property,  like  that 
of  the  human  person,  is  capable  of  being  established, 
not  only  by  direct  evidence,  but  by  means  of 
numberless  circumstances  which  it  is  not  possible  to 
enumerate.  Most  of  the  cases  of  identification  which 
have  been  mentioned  in  the  preceding  Section,  are 
in  fact  cases  of  identification  of  articles  of  property, 
applied  inferentially  to  the  establishment  of  personal 
identity,  and  sufficiently  illustrate  the  difficulties 
which  attend  investigations  of  this  kind.  The 
following  cases,  as  well  as  others  which  have  been 

thing,  the  most  satisfactory  mode  of  proof  is  dig  out  and  preserve  the 
original  footprints ;  where  that  cannot  be  done,  casts  in  plaster  of  Paris 
should  be  taken.  Where  neither  of  these  methods  are  adopted  and 
the  identification  is  sought  to  be  established  merely  by  the  police 
evidence,  juries  are  apt  to  pay  very  little  attention  to  it. 

((?)  See  the  remarkable  case  of  Franqois  Mayenc,  Gabriel,  403. 

{p)  Rex  V.  Thornton,  see  pp.  244 — 249,  infra  \  Rex  v.  Isaac  Looker, 
tee  pp.  242 — 244,  infra. 


IDENTIFICATION    OF    ARTICLES    OF    PROPERTY.       IJQ 

already  mentioned,  illustrate  the  liability  to  error  and 
misconception,  of  even  well-intentioned  witnesses 
who  speak  to  facts  of  this  kind. 

At  the  Spring  Assizes,  at  Bury  St.  Edmunds,  1830, 
a   respectable    farmer,    occupying    twelve    hundred 
acres     of     land,    was     tried     for    a    burglary    and 
stealing     a     variety     of     articles.       Amongst     the 
articles  alleged  to  have    been    stolen  were    a    pair 
of  sheets   and   a   cask,    which    were    found    in    the 
possession  of  the  prisoner,  and  were  positively  sworn 
to  by  the  witnesses  for  the  prosecution  to  be  those 
which  had  been  stolen.      The  sheets  were  identified 
by  a   particular   stain,    and   the   cask    by  the   mark 
"  P.   C.   84."  enclosed  in  a  circle  at  one   end  of  it. 
On  the  other  hand,  a  number  of  witnesses  swore  to 
the  sheets  being   the   prisoner's,  by  the  same  mark 
by  which  they  had  been   identified  by  the  witnesses 
on  the  other  side  as  being  the  prosecutor's.      With 
respect    to    the    cask,   it  was   proved    by   numerous 
witnesses,  whose  respectability  left  no  doubt  of  the 
truth  of   their  testimony,   that  the  prisoner  was   in 
the  habit  of  using  cranberries  in  his  establishment, 
and  that  they  came  in  casks,  of  which  the  cask  in 
question  was  one.      In  addition  to  this,  it  was  proved 
that  the  prisoner  purchased  his  cranberries  from  a 
tradesman  in  Norwich,  whose  casks  were  all  marked 
"  P.   C.   84."   enclosed   in   a  circle,   precisely  as   the 
prisoner's  were,  the  letters   P.   C.   being  the  initials 
of  his  name,  and  that  the  cask  in  question  was  one 
of    them.       In    summing    up,    the    learned    judge 
remarked,    that    this    was    one    of   the   most  extra- 
ordinary   cases    ever    tried,    and    that    it    certainly 

N  2 


l80  EXTRINSIC    INCULPATORY    INDICATIONS. 

appeared    tliat    the    witnesses    for    the    prosecution 
were  mistaken.      The  prisoner  was  acquitted  [q). 

A  man  was  tried  in  Scotland  for  housebreakinor 
and  theft.  The  i^irl  whose  chest  liad  Ixjen  broken 
open,  and  whose  clothes  had  been  carried  off,  swore 
to  the  only  article  found  in  the  prisoner's  possession 
and  produced,  namely,  a  white  gown,  as  being  her 
property.  She  had  previously  described  the  colour, 
quality  and  fashion  of  the  gown,  and  they  all  seemed 
to  correspond  with  the  article  produced.  The 
housebreaking  being  clearly  proved,  and  the  goods, 
as  it  was  thought,  clearly  traced,  the  case  was  about 
to  be  closed  by  the  prosecutor,  when  it  occurred  to 
one  of  the  jury  to  cause  the  girl  to  put  on  the  gown. 
To  the  surprise  of  every  one  present,  it  turned  out 
that  the  gown  wfiich  the  girl  had  sworn  to  as 
belonging  to  her — which  corresponded  with  her 
description,  and  which  she  said  she  had  worn  only  a 
short  time  before — would  not  fit  her  person.  She 
then  examined  it  more  minutely,  and  at  length  said 
it  was  not  her  gown,  though  almost  in  every  respect 
resembling  it.  The  prisoner  was,  of  course,  acquitted ; 
and  it  turned  out  the  gown  produced  belonged  to 
another  woman,  whose  house  had  been  broken 
into  about  the  same  period,  by  the  same  person,  but 
of  which  no  evidence  had  at  that  time  been 
produced  (7'). 

On  the  trial  of  a  young  woman  for  child-murder, 
it  appeared  that  the   body  of  a  newly-born  female 

[q)  See  Ann.  Reg.,  1830  (Chr.),  p.  5c. 

(r)  Rex  V.  Webster,  Burnett  on  the  Criminal  Law  of  Scotland,  p.  558  ; 
19  St.  Tr.  coL  494  (note). 


IDENTIFICATION    OF    ARTICLES    OF    PROPERTY.       l8l 

cliikl  was  found  in  a  pond  about  a  hundred  yards 
from  her  master's  house,  dressed  in  a  shirt  and  cap, 
and  a  female  witness  deposed  that  the  stay  or  tie 
which  was  pinned  to  the  cap,  and  made  of  spotted 
Hnen,  was  made  of  the  same  stuff  as  a  cap  found  in 
the  prisoner's  box  ;  but  a  mercer  declared  that  the 
two  pieces  were  not  only  unlike  in  pattern,  but 
different  in  quality  {s). 

A  youth  was  convicted  of  stealing  a  pocket-book 
containing-  hve  one-pound  notes,  under  very  extra- 
ordinary circumstances.  The  prosecutrix  leit  home 
to  oro  to  market  in  a  nei^hbourino"  town,  and  havin^j: 
stooped  down  to  look  at  some  vegetables  exposed 
to  sale,  she  telt  a  hand  resting  upon  her  shoulder, 
which  on  rising  up  she  found  to  be  the  prisoner's. 
Having  afterwards  purchased  some  articles  at  a 
grocer's  shop,  on  searching  for  her  pocket-book  in 
order  to  pay  for  them,  she  found  it  gone.  Her 
suspicion  fell  upon  the  prisoner,  who  was  appre- 
hended, and  upon  his  person  was  found  a  black 
pocket-book,  which  she  identified  by  a  particular 
mark,  as  that  which  she  had  lost,  but  it  contained 
no  money.  Several  witnesses  deposed  that  the 
prisoner  had  long  possessed  the  identical  pocket- 
book,  speaking  also  to  particular  marks  by  which 
they  were  enabled  to  identify  it ;  but  some  dis- 
crepancies in  their  evidence  having  led  to  the 
suspicion  that  the  defence  was  a  fabricated  one,  the 
jury  returned  a  verdict  of  guilty,  and  the  prisoner 
was    sentenced    to    be    transported.       During    the 

(s)  Rex    V.    Bate,    Warwick    Autumn    Assizes,     1809,    bcloie    Le 
Blanc,  J. 


l82  EXTRINSIC    INCULPATORY    INDICATIONS. 

continuance  of  the  Assizes,  two  men  who  were 
mowing  a  field  of  oats  through  which  the  path  la)' 
by  which  the  prosecutrix  had  gone  to  market,  found 
in  the  oats  close  to  the  path  a  black  pocket-book 
containing  five  one-pound  notes.  The  men  took 
the  notes  and  pocket-book  to  the  prosecutrix,  who 
immediately  recognized  them  ;  and  the  committing 
magistrate  despatched  a  messenger  with  the  articles 
found,  and  her  affidavit  of  identity  to  the  judge  at 
the  assize  town,  who  directed  the  prisoner  to  be 
placed  at  the  bar,  publicly  stated  the  circumstances 
so  singularly  brought  to  light,  and  directed  his 
immediate  discharge.  The  prosecutrix  must  have 
dropped  her  pocket-book,  or  drawn  it  from  her 
pocket  with  her  handkerchief,  and  had  clearly  been 
mistaken  as  to  the  identity  of  the  pocket-book 
produced  upon  the  trial  (/). 

It  is  not,  however,  necessary  that  the  identity  of 
stolen  property  should  be  invariably  established  by 
positive  evidence.  In  many  such  cases  identification 
is  impracticable ;  and  yet  the  circumstances  may 
render  it  impossible  to  doubt  the  identity  of  the 
property,  or  to  account  for  the  possession  of  it  by 
the  party  accused  upon  any  reasonable  hypothesis 
consistent  with  his  innocence ;  as  in  the  case  of 
labourers  employed  in  docks,  warehouses,  or  other 
such  establishments,  found  in  possession  of  tea, 
sugar,  tobacco,  pepper,  or  other  like  articles,  con- 
cealed about  the  person,  in  which  cases  the  similarity 
or   general    resemblance    of    the    article    stolen    is 

(/)  Rex     V.     Gould,     Stafford      Summer     Assizes,     1820,     coram 
Garrow,  B. 


IDENTIFICATION    OF    ARTICLES    OF    PROPERTY.       183 

sufficient  (ii).  Two  men  were  convicted  of  stealinj^ 
a  quantity  of  soap  from  a  soap  manufactory  near 
Glasgow,  which  was  broken  into  on  a  Saturday 
night  by  boring  a  hole  in  the  wall,  and  i  20  lbs.  of 
yellow  soap  abstracted.  On  the  same  night,  at 
eleven  o'clock,  the  prisoners  were  met  by  a  watch- 
man near  the  centre  of  the  city,  one  of  them  having 
40  lbs.  of  yellow  soap  on  his  baciv,  and  the  other 
with  his  clothes  greased  all  over  with  the  same 
substance.  The  prisoners,  on  seeing  the  watchman, 
attempted  to  escape,  but  were  seized.  The  owner 
declared  that  the  soap  was  exactly  of  the  same  kind, 
size,  and  shape,  with  that  abstracted  from  his 
manufactory  ;  but  as  it  had  no  private  mark,  he 
could  not  identify  it  more  distinctly.  One  of  the 
prisoners  had  formerly  been  a  servant  about  the 
premises,  and  both  of  them  alleged  that  they  got  the 
soap  in  a  public-house  from  a  man  whom  they  did 
not  know  (x).  A  servant  man  was  seen  to  come 
from  a  part  of  his  master's  premises  where  he  had 
no  right  to  go,  and  where  a  large  quantity  of  pepper 
was  stored  in  bulk,  and  on  being  stopped,  a  quantity 
of  pepper  of  the  same  kind  was  found  on  his  person  : 
it  was  held  by  the  Court  for  the  Consideration  of 
Crown  Cases  Reserved  that  though  the  pepper 
could  not  be  positively  identified,  he  had  been 
properly  convicted  of  larceny  (j). 

(u)  2  East,  P.  C.  657  ;  2  Russell  on  Crimes,  6th  ed.,  p.  294  ;  Hex  v- 
W/nye,  R.  &  R.  508  ;  Re^.  v.  Dredge,  i  Cox,  C.  C.  235. 

(.r)  Rexv.M''Kechnie  and  To/inie,  Glasgow  Spring  Circuit,  1828, 
Alison's  Principles  of  the  Criminal  Law  of  Scotland,  vol.  i., 
p.   322.     Cf.  p.  80,  supra. 

{y)  Rex  V.  Burton,  23  L.  J.  M.  C.  52 ;  6  Cox,  C.  C.  293  ;  and  see 
Reg.  V.  Hooper,  i  F.  &  F.  85. 


184       extrinsic  inculpatory  indications. 

Section  3. 

proof  of  handwriting 

Strictly  speaking,  the  only  evidence  of  handwriting 
which  is  entitled  to  be  called  direct,  is  the  evidence 
of  a  witness  who  proves  that  he  himself  wrote  or 
signed  the  document  in  question,  or  that  of  a  witness 
whoproves  that  he  saw  the  document  written  orsigned. 
All  other  evidence  of  handwriting  must  rest  in  greater 
or  less  degree  upon  inferences  drawn  from  the 
appearance  of  the  writing  in  question  or  other 
circumstances. 

Where  such  direct  testimony  is  not  available, 
the  best  and  usual  mode  of  proving  handwriting 
is,  by  the  direct  testimony  of  some  witness  who 
has  either  seen  the  party  write,  or  acquired  a 
knowledge  of  his  handwriting  from  having  corre- 
sponded with  him,  and  had  transactions  in  business 
with  him  on  the  faith  that  letters  purporting  to 
have  been  written  or  signed  by  him  were  genuine. 
In  either  case,  the  witness  is  supposed  to  have 
received  into  his  mind  an  exemplar  of  the  general 
character  of  the  handwriting  of  the  party,  and  he 
is  called  on  to  speak  to  the  writing  in  question 
by  reference  to  the  standard  so  formed  in  his 
mind  (z). 

In   cases    where    evidence    of  the    kinds    above 

(z)  Per  Coleridge,  J.,  in  Doe  d.  Mudd  v.  SuJcermore,  5  A.  &;  E.,  at 
p.  70s,  and  2  N.  &  P.  16. 


PROOF    OF    HANDWRITING.  185 

descri1:)ed  was  lacking  or  required  corroboration, 
the  question  arose  whether  it  was  admissible  for  the 
Court  or  jury  to  judge  of  the  genuineness  of  a 
Avriting  in  dispute  from  its  likeness  or  unlikeness  to 
othf^r  writings,  the  genuineness  of  which  was  capable 
of  proof  in  other  ways,  and  whether  witnesses  might 
be  called  for  the  purpose  of  proving  the  effect  of 
such  comparison. 

The  following  may  be  taken  as  a  fair  statement 
of  juridical  opinion  and  practice  upon  this  subject 
prior  to  the  legislative  change  introduced  in  the 
year   1S54. 

Evidence  of  similitude  of  handwriting  by  the 
comparison  of  controverted  writing  with  the  admitted 
or  proved  writing  of  the  party,  made  by  a  witness 
who  had  never  seen  the  party  write,  nor  had  any 
knowledge  of  his  handwriting,  and  who  arrived  at 
the  inference  that  it  was  his  handwriting  because  it 
was  like  some  other  which  was  his  {a),  was  a  mode 
of  proof  much  lauded  by  writers  on  the  civil  law, 
and  was  commonly  admitted  in  those  countries 
whose  jurisprudence  is  founded  on  that  system  ;  the 
comparison  being  made  by  professional  experts 
appointed  by  the  Court  or  agreed  upon  by  the 
parties,  under  many  restrictions  for  securing  the 
genuineness  of  the  writings  which  are  to  form  the 
standard  of  comparison.  Comparison  of  hand- 
writing appears  also  to  have  been  a  recognized 
mode    of   proof   in   some  of  the   American   States, 

(a)  Bentham's    Rationale   of  Judicial    Evidence,    book   vii.,  c.  3  ; 
Rex  V.  De  la  Mode,  21  St.  Tr.  col.  810. 


l86  EXTRINSIC    INCULPATORY    INDICATIONS. 

v/hose  judicial  systems  are  generally  founded  on  our 
own  {/?).  Such  evidence  was  in  general  inadmissible 
in  this  country,  though  the  leaning  of  text-writers  of 
authority  appears  to  have  been  rather  in  favour  of 
the  principle  of  its  admissibility  ;  the  only  admitted 
exceptions  being,  where  the  writing  acknowledged 
to  be  genuine  was  already  in  evidence  in  the  cause, 
or  the  disputed  writing  was  an  ancient  writing  (c). 
In  these  excepted  cases,  the  evidence  was  admitted, 
it  was  said,  of  necessity — in  the  former  case  because 
it  was  not  possible  to  prevent  the  jury  from  making 
such  comparison,  and  therefore  it  was  best,  as  was 
remarked  by  Lord  Denman  (d),  for  the  Court  to 
enter  with  the  jury  into  that  inquiry,  and  do  the 
best  it  could  under  circumstances  which  could  not 
be  helped ; — in  the  latter,  because  from  the  lapse  of 
time  no  living  person  could  have  any  knowledge  of 
the  handwriting  from  *  his  own  observation  (,?),  and 
because  in  ancient  documents  it  often  became  a 
pure  question  of  skill,  the  character  of  the  hand- 
writing varying  with  the  age,  and  the  discrimination 
of  it  being  materially  assisted  by  antiquarian 
researches  (/). 

(d)  See  in  Bemis's  Report  of  the  Trial  of  Professor  Webster,  some 
curious  evidence  of  this  kind  ;  see  p.  109,  supra. 

(<:)  Allport  V.  Meek,  4  C.  &  P.  267  ;  Brojnage  v.  Rice,  7  ibid.  548  ; 
Waddingtofi  v.  Coiisins,  ibid.  595  ;  Griffith  v.  Williams,  i  C.  &  J.  47  ; 
Doe  d.  Perry  v.  Neivton,  i  N.  &  P.  1  ;  and  5  A.  &  E.  514  ;  Solita  v. 
Ya-'-roiv,  i  M.  &  R.  133  ;  Griffits  v.  Ivery,  11  A.  &  E.  322  ;  The  Fits- 
waiter  Peerage,  10  C.  &;  F.  193  ;  Doe  d.  Jenkins  v.  Davies,  10  Q.  B. 
314  ;  16  L.  J.  Q.  B.  218  ;  and  see  Reg.  v,  Taylor,  6  Cox,  C.  C.  58. 

(d)  \tv  Doe  d.  Perry  v.  Newton,  i  N.  &  P.  i. 

{e)  Per  Patteson,  J.,  in  Doe  d.  Muddw  Sicckermore,  5  A.  &  E.  703, 
at  p.  736. 

{/)  Per  Coleridge,  J.,  ibid.,  at  p.  718. 


PROOF    OF    HANDWRITING.  187 

The  evidence  of  persons  accustomed  to  the  critical 
examination  of  handwriting,  as  engravers  and 
inspectors  of  franks,  who,  without  any  previous 
knowledge  of  a  person's  handwriting,  have  professed 
to  be  able  to  determine  by  comparison  of  the 
disputed  with  the  genuine  writing,  whether  a 
signature  be  genuine  or  not,  and  also  from  the 
general  character  and  appearance  of  writing,  whether 
it  is  written  in  a  natural  or  feigned  hand,  was 
formerly  considered  another  exception  to  the  rule  (o-) ; 
but  it  came  to  be  thought  of  so  little  weight,  and 
attempts  to  introduce  it  were  so  much  dis- 
countenanced, that,  in  the  lanofuaofe  of  Lord 
Denman  (//),  this  chapter  might  be  considered  as 
expunged  from  the  book  of  evidence.  It  was 
remarked  of  evidence  of  this  nature,  that  besides 
being  subject  to  the  same  defects  as  the  opinions  of 
persons  speaking  from  previous  familiar  knowledge, 
it  arose  from  a  forced  acquaintance  with  the  hand- 
writing of  a  few,  often  selected,  specimens,  while  the 
examination  was  made  solely  with  a  view  to  giving 
evidence  in  favour  of  the  party  to  whom  the  witness 
looks  for  remuneration  (z)  ;  so  that,  in  the  words  of 
an  eminent  Scotch  judge,  "  in  almost  all  countries, 
the  evidence  of  persons  of  skill  on  this  subject  is 
almost  totally  abandoned  "  (k). 

i/f)  Goodtitle  v.  Rcvett^  4  T.  R.  497  ;  Rex  v.  Cator,  4  Esp.  117  ;  Rex 
v.  Johnson,  29  St.  Tr.  81. 

(Ji)  Doe  d.  Miidd  v.  Sitckerniore,  5  A.  &  E.,  at  p.  751  ;  and  see 
Gurney  v.  Langlands,  5  B.  &  Aid.  330  ;  Constable  v.  Steibcl,  i  Hagg, 
56  ;  Young  v.  Brown,  ibid.  569  ;  The  Fitztvalter  Peerage,  10  C.  &  F, 
193  ;   The  Tracy  Peerage,  ibid.  154. 

{i)  Dickson's  Law  of  Evidence  in  Scotland,  vol.  i.,  s.  925,  p.  477, 

iJS)  Per  Lord  Mackenzie,  ibid.,  note  («). 


l88  EXTRINSIC    INXULPATORY    INDICATIONS. 

An  attempt  was  made  in  tlie  year  1836,  in  the 
leading  case  of  Doe  v.  Suckcrmore,  to  introduce 
expert  evidence  by  comparison  of  liandvvritintys. 
The  question  in  the  cause  was  the  due  execution  of 
a  will.  On  the  first  day  of  the  trial  the  defendant 
called  an  attesting  witness,  who  swore  that  the 
attestation  was  his.  On  his  cross-examination,  two 
signatures  to  depositions  respecting  the  same  will  in 
an  Ecclesiastical  Court,  and  several  other  signatures 
were  shown  to  him  (none  of  them  being  in  evidence 
for  any  other  purpose  of  the  cause),  and  he  stated 
that  he  believed  them  to  be  his.  On  the  following 
day  the  plaintiff  tendered  a  witness  to  prove  the 
attestation  not  to  be  genuine.  The  witness  was  a 
bank-inspector,  who  had  no  knowledge  of  the 
handwriting  of  the  supposed  attesting  witness, 
except  from  having  previous  to  the  trial,  and  again 
between  the  two  days,  examined  the  signatures 
adniitted  by  the  attesting  witness,  which  admission 
he  had  heard  miade  in  Court.  Mr.  Justice  Vaughan 
rejected  the  evidence  ;  and  upon  a  motion  for  a  new 
trial  on  the  ground  of  its  improper  rejection,  the 
judges  of  the  Court  of  Queen's  Bench  were  equally 
divided  in  opinion  (/). 

Thus  stood  the  law  down  to  1854,  when  the 
Common  Law  Procedure  Act  of  that  year  {rn) 
enacted  that  comparison  of  a  disputed  writing  with 
any  writing  proved  to  the  satisfaction  of  the  judge 
to  be  genuine,   shall  in  civil  cases  be  permitted  to 

(/)  5  A.   &   E.   703;    and  see  Hughes  v.  Rogers,  8  iM.  &  W.  133; 
Young  V.  Hor7ter,  2  M.  &  R.  536  ;  i  C.  &  K.  51. 
(tn)  17  &  18  Vict.  c.  125,  s.  27. 


PROOF    OF    HANDWRITING.  l8g 

be  made  by  witnesses,  and  such  writing's,  and  the 
evidence  of  witnesses  respecting  the  same,  may  be 
submitted  to  the  Court  and  jury  as  evidence  of  the 
genuineness  or  otherwise  of  the  writing  in  dispute. 

A  few  years  later  a  section  in  precisely  the  same 
terms  was  incorporated  into  the  Criminal  Evidence 
Act,  1865  (w),  so  that  the  anomaly  of  a  difference 
between  the  rules  governing  the  admissibility  of  such 
evidence  in  civil  and  criminal  cases  no  longer  exists. 

Evidence  as  to  handwriting  is  subject  to  many 
sources  of  fallacy  and  error,  among  which  may  be 
enumerated  tuition  by  the  same  preceptor,  employ- 
ment with  other  persons  in  the  same  place  of  busi- 
ness, as  well  as  designed  imitation  or  disguise,  all  of 
which  are  frequently  causes  of  great  similarity  in 
writing-.  Men  in  certain  businesses  or  professions 
sometimes  adopt  peculiarities  of  character,  though 
less  frequently  than  formerly  ;  and  there  are  charac- 
teristic peculiarities  indicative  of  age,  infirmity,  and 
sex  (0). 

Handwriting  is  sometimes  most  successfully 
imitated.  On  a  trial  for  forgery  of  bank-notes,  a 
banker's  clerk  whose  name  was  on  one  of  the  notes 
swore  distinctly  that  it  was  his  handwriting,  although 
as  a  matter  of  fact  it  was  forged,  while  h^  spoke  hesi- 
tatingly with  respect  to  his  genuine  subscription  {/>). 
A  solicitor  named  Shaw  was  tried  at  Derby,  in  1S61 

(n)  28  &  29  Vict.  c.  18,  s.  8. 

(o)  See  Rex  v.  Johnson,  29  St.  Tr.,  at  col.  475. 

(^)  Rex  V.  Carsewell^  Burnett's  Criminal  Law  of  Scotland,  502. 


igO  EXTRINSIC    INCULPATORY    INDICATIONS. 

or  186.?,  on  a  number  of  indictments  for  forg"ery. 
One  of  them  related  to  a  deed  which  purported  to  be 
executed  by  a  chent  of  his  named  Abel.  Abel  had 
executed  a  g^enuine  mortgage,  and  the  solicitor  had 
forged  another  in  his  name.  The  client,  Abel,  swore 
to  the  forgery  as  his  genuine  signature,  and  swore 
that  the  s^enuine  signature  was  not  his.  He  (jave 
this  evidence  before  the  magistrate  and  the  grand 
jury.  But  he  had  made  a  mistake,  and  in  an  action, 
tried  likewise  at  Derby,  on  the  forged  deed,  it  was 
conclusively  established  by  the  evidence  of  the  con- 
vict, corroborated  by  a  variety  of  circumstances, 
that  he  hsd  sworn  to  the  wrong  deed  as  his  own  [q). 
Lord  Eldon  mentioned  a  very  remarkable  instance 
of  the  uncertainty  of  this  kind  of  evidence.  A  deed 
was  produced  at  a  trial  on  which  much  doubt  was 
thrown  as  a  discreditable  transaction.  The  solicitor 
was  a  very  respectable  man,  and  was  confident  in 
the  character  of  his  attesting  witnesses.  One  of 
them  purported  to  be  Lord  Eldon  himself,  and  the 
solicitor,  who  had  referred  to  his  signature  to  plead- 
ings, had  no  doubt  of  its  authenticity,  yet  Lord 
Eldon  declared  that  he  had  never  attested  a  deed 
in  his  life  (r). 

Sometimes,  on  the  contrary,  a  very  small  matter 
is  conclusive  as  to  the  genuineness  or  otherwise  of 

iq)  Pai?iter  v.  Af>el^  coram  Erie,  C.  J.,  Derby  Summer  Assizes, 
1862,  2  H.  &  C.  113  ;  33  L.  J.  Exch.  60.  In  the  latter  report  it  is 
erroneously  stated  that  the  convict  was  not  called.  The  Editor 
perfectly  well  remembers  his  appearance  in  the  witness-box,  and  in 
convict  clothes,  and  the  contrast  he  presented  to  the  over-dressed  man 
who  had  appeared  with  something  of  a  swagger  in  the  dock  a  few 
months  before. 

(r)  Eaglcion  v.  Kingston^  8  Ves,,  at  p.  476. 


PROOF    OF    HANDWRITING.  IQI 

documents  of  disputed  oriL,nn.  In  Cressiucllv.  Jack- 
sofi  {s),  certain  codicils,  an  interlineation  in  a  will  and 
part  of  an  epitome  of  the  will  and  the  first  codicil  were 
successfully  shown  to  be  forgeries.  It  turned  out  that 
the  method  of  crossing  the  letter /in  the  word  "to  "was 
an  absolute  key  to  the  handwritings  of  the  testator  and 
the  forger — and  similarly,  in  Hozve  v.  Ashton  (/),  the 
method  of  making  the  upper  part  of  the  figure  7  was 
conclusively  shown  to  be  a  crucial  test  as  to  whether 
the  incriminated  document  was  genuine  or  not 

In  a  case  in  Doctors'  Commons  the  learned  judge 
repudiated  the  common  objection  of  painting  or 
touching,  as  a  reason  for  inferring  fraud,  saying  that 
there  could  scarcely  be  a  less  certain  criterion,  and 
peremptorily  declined  the  use  of  a  glass  of  high 
powers,  said  to  have  been  used  by  the  professional 
witnesses,  observing,  in  substance,  that  glasses  of 
high  power,  however  fitly  applied  to  the  inspection 
of  natural  subjects,  rather  tend  to  distort  and  mis- 
represent than  to  place  subjects  of  the  kind  in  question 
in  their  true  light  ;  especially  when  used  (their  ordi- 
nary application  in  the  hands  of  prejudiced  persons)  to 
confirm  some  theory  or  preconceived  opinion  (?/).  But 
it  is  the  daily  practice  of  Courts  of  Common  Law  to 
admit  the  artificial  aid  of  glasses  and  lamps  ;  and  on 
an  indictment  for  forgery,  the  question  being  whether 
a  paper  had  originally  contained  certain  pencil 
marks  which  were  alleged  to  have  been  rubbed  out, 
and  ink-writings  written  in   their  stead,  the  opinion 

(i')  See  p.  402,  injra. 
(/)  See  p.  413,  infm, 
(u)  Robson  V.  Rocke,  2  Addams,  53,  at  pp.  85,  88  (a),  89. 


ig2  EXTRINSIC    INCULPATORY    INDICATIONS. 

of  an  cni;ravcr.   who   liad   examined    the  document 
wilh  a  mirror,   was   licld   t<3  be  receivable  (.r). 

The  distrust  of  maonif)inL,r  glasses  above  alluded 
to  was  perhaps  natural  a  century  ago,  seeing  what 
they  were.  A  glass  of  high  power  and  with  a  narrow 
area  of  undistorted  vision  may  very  well  still  convey 
an  erroneous  impression  to  the  observer.  But  with 
such  excellent  instruments  as  are  readily  at  command 
at  the  present  day  the  old-fashioned  distrust  has 
disappeared,  and  such  aids  to  the  eyesight  are  of 
the  utmost  value.  Enlarged  photographs  are  often 
of  great  use,  not  only  to  show  the  patching  and 
painting  which  sometimes  accompanies  a  forgery, 
but  also  to  indicate  diversities  of  ink  or  half-erased 
pencil  marks  :  such  variations  depending  upon 
differences  in  the  chemical  composition  of  the  sub- 
stances remaining  upon  the  paper  which  affect 
the  actinic  effect  of  the  rays  reilected  from  them. 
Effective  use  was  made  of  enlarged  photographs  in 
investigating  the  Piggott  forgeries,  and  an  elaborate 
series  of  them  prepared  for  use  before  the  Parnell 
Commission  was  once  shown  to  the  Editor.  They 
were  conclusive,  but  were  not  used  in  Court  as  the 
case  for  the  forgeries  broke  down  upon  the  cross- 
examination  of  Piggott. 

The  following  extract  from  a  learned  judgment 
of  Sir  John  NichoU  embodies  many  instructive 
observations  upon  this  kind  of  evidence  :  '*  This 
Court  has  often  had  occasion  to  observe,  that 
evidence  to  handwriting  is  at  best,  in  its  own  nature, 

{x)  Reg.  V.  Williams,  8  C.  &  P.  434. 


PROOF    OF    HANDWRITING.  193 

very  inconclusive;  affirmative, from  the  exactness  with 
which  handwriting  may  be  imitated  ;  and  negative, 
from  the  dissimilarity  which  is  often  discoverable  in 
the  handwriting  of  the  same  person  under  different 
circumstances.  Without  knowing  very  precisely 
the  state  and  condition  of  the  writer  at  the  time, 
and  exercising  a  very  discriminating  judgment  upon 
these,  persons  deposing,  especially,  to  a  mere 
sionature  not  being  that  of  such  or  such  a  person 
from  its  dissimilarity  —  howsoever  ascertained  or 
supposed  to  be — to  his  usual  handwriting,  are  so 
likely  to  err,  that  negative  evidence  to  a  mere  sub- 
scription, or  signature,  can  seldom,  if  ever,  under 
ordinary  circumstances,  avail  in  proof  against  the 
final  authenticity  of  the  instrument  to  which  that 
subscription  or  signature  is  attached.  But  such 
evidence  is  peculiarly  fallacious  where  the  dis- 
similarity relied  upon  is  not  that  of  general  character, 
but  merely  of  particular  letters  ;  for  the  slightest 
peculiarities  of  circumstance  or  position — as,  for 
instance,  the  writer  sitting  up  or  reclining,  or  the 
paper  being  placed  upon  a  harder  or  softer  substance, 
or  on  a  plane  more  or  less  inclined — nay,  the 
materials,  as  pen,  ink,  etc.,  being  different  at  different 
times — are  amply  sufficient  to  account  tor  the  same 
letters  being  made  variously  at  the  different  times 
by  the  same  individual.  Independently  however  of 
anything  of  this  sort,  few  individuals,  it  is 
apprehended,  write  so  uniformly  that  dissimilar 
formations  of  particular  letters  are  grounds  for 
concluding  them  not  to  have  been  made  by  the 
same  person  "(j'). 

{j)  Robson  V.  Rocke,  2  Addams,  at  p.  79. 
C.E.  O 


194  EXTRINSIC    INCULPATORY    INDICATIONS. 

The  difficulty  of  provingr  handwriting  is  greatly 
increased  where  it  is  studiously  disguised  ;  but  such 
is  the  power  of  habit,  that  though  persons  may 
succeed  to  a  certain  extent  in  disguising  their  writ- 
ino-,  they  commonly  fall  into  their  natural  manner 
and  characteristic  peculiarities  of  writing  (z) ;  such 
peculiarities  being  most  commonly  manifested  in  the 
formation  of  particular  letters,  or  in  the  mode  of 
spelling  particular  words. 

A  tailor,  of  the  name  of  Alexander,  having  learned 
that  a  person  of  the  same  name  had  died,  leaving 
considerable  property  without  any  apparent  heirs 
existing,  obtained  access  to  a  garret  in  the  family 
mansion ;  and  it  was  said  found  there  a  collection  of 
old  letters  about  the  family.  These  he  carried  off, 
and  with  their  aid  fabricated  a  mass  of  similar  pro- 
ductions, which,  it  was  said,  clearly  proved  his 
connection  with  the  family  of  the  deceased,  and  the 
Lord  Ordinary  decided  the  cause  in  his  favour;  the 
case  however  was  carried  to  the  Inner  House.  When 
it  came  into  Court,  certain  circumstances  led  Lord 
Meadowbank,  then  a  young  man  at  the  bar,  to 
doubt  the  authenticity  of  the  documents.  One 
circumstance  was,  that  there  were  a  number  of 
words  in  the  letters,  purporting  to  be  from  different 

(z)  Per  Macdonald,  L.  C.  B.,  in  Rex  v.  Binghain,  Horsham  Spring 
Assizes,  1811,  Shorthand  Report,  106;  Howe  v.  Asliton,^.  413,  infra; 
Cresswell  \.  Jackson,  p.  402,  infra,  and  see  p.  191,  supra.  The  latter 
case  presented  a  curious  instance  of  characteristic  spelling.  The 
person  alleged  to  be  the  writer  of  the  incriminated  documents  (with 
only  one  discovered  exception)  invariably  spelled  "daughter" 
"  donghier^''  a  phonetic  way  of  spelling  the  word  after  the  pronuncia- 
tion common  in  the  district.     The  testator  never  made  this  mistake. 


VERIFICATION    OF    DATES    AND    TIME.  I95 

individuals,  spelt,  or  rather  misspelt,  in  the  same 
way,  and  some  of  them  so  peculiar,  that  on  examin- 
ing them  minutely,  there  was  no  doubt  that  they  were 
all  written  by  the  same  hand.  The  case  attracted  the 
attention  of  the  Inner  House.  The  party  was  brought 
to  the  clerk's  table,  and  was  examined  in  the  presence 
of  the  Court.  He  was  desired  to  write  to  the  dictation 
of  the  Lord  Justice  Clerk,  and  he  misspelt  all  the  words 
that  were  misspelt  in  the  letters  in  precisely  the  same 
way ;  and  this  and  other  circumstances  proved  that  he 
had  fabricated  all  of  them  himself.  He  then  confessed 
the  truth  of  his  having  written  the  letters  on  old 
paper,  which  he  had  found  in  the  garret ;  and  this 
result  was  arrived  at  in  the  teeth  of  the  testimony  of 
half-a-dozen  engravers,  all  of  whom  said  that  they 
thought  the  letters  were  written  by  different  hands  {a). 

It  is  even  more  difficult  to  depose  with  confi- 
dence to  the  identity  of  a  disguised  writing,  if  the 
disguise  is  applied  to  printed  characters,  and  Mr. 
Baron  Rolfe  spoke  of  such  evidence  as  of  no  value  (<^). 

Section  4. 

verification  of   dates  and  time. 

Amongst  the  numerous  physical  and  mechanical 
circumstances  which  occasionally  lead  to  the  detec- 
tion of  forgery  and  fraud,  a  discrepancy  between  the 

(a)  Related  by  Lord  Meadowbank  himself,  in  the  course  of  his 
charge  to  the  jury,  in  -R^g-  v.  Humphreys^  see  pp.  198-201,  tJifra ; 
Swinton's  Report  at  p.  350 ;  and  see  Shorthand  Report  of  the  case  of 
Smith  V.  Earl  Ferrers,  1846. 

{d)  Reg.  V.  Rush,  Norwich  Spring  Assizes,  1849  ;  Professor  IVebstcr's 
case,  Bemis's  Report,  see  p.  109,  supra. 

O    2 


ICj6  EXTRINSIC    INCULPATORY    INDICATIONS. 

date  of  a  writinL^  and  the  anno  Domini  water-mark 
in  the  tahric  of  tlie  paper  is  one  of  the  most  strikiiiLi;- ; 
hut  inasmuch  as  prospective  issues  of  paper,  bearing 
the  water-mark  of  a  succeeding  year,  are  occasion- 
ally matle,  tliis  circumstance  is  not  always  a  safe 
ground  of  presum[)tion  (^) ;  and  it  is  not  uncommon 
among  mauLifacturers  both  to  post-date  and  to  ante- 
date their  paper-moulds.  A  witness  examined  in 
1834  stated  that  he  was  then  making  moulds  with 
the  date  of  1828,  under  a  special  order  [d).  In  an 
old  case  a  criminal  design  was  detected  by  the  cir- 
cumstance that  a  letter,  purporting  to  come  from 
Venice,  was  written  upon  paper  made  in  England  (^). 

In  one  case,  in  which  an  action  was  brought  upon 
a  forged  cheque  alleged  to  have  been  given  to  the 
plaintiff  by  a  deceased  person,  the  plaintiff,  in  order 
to  account  for  the  possession  of  a  sum  of  ^200 
which  he  said  he  had  lent  to  the  deceased  man, 
stated  that  he  had  borrowed  that  sum  from  his 
mother-in-law,  to  whom  he  had  given  a  promissory 
note,  which  he  produced,  having,  as  he  said,  obtained 
it  from  her  for  the  purposes  of  the  trial.  There  was 
a  hole  through  the  year  mark  on  the  stamp,  which  he 
said  was  caused  by  his  mother-in-law  having  put  it 
on  a  file.  The  note  was  dated  in  1889.  The  date- 
mark  should  have  been  "  89."  Just  enough  remained 
of  the  first  fi^^ure  to  sufiffrest  to  the  iudgre  that  the 

{c)  A  Commissioner  of  the  Insolvent  Debtors'  Court  sitting  at  Wake- 
field in  1836.  discovered  that  the  paper  he  was  then  using,  which  had 
been  issued  by  the  Government  stationer,  bore  the  water-mark  of  1837. 

{d)  Rodger  v.  Kay,  12  Cases  in  Court  of  Session,  317  ;  Miller  v. 
Frasei\  4  ib.  551  ;  4  Murray's  Cases  in  Jury  Court,  at  p.  118. 

ie)  Sir  Francis  Moore's  Rep.  817. 


VERIFICATION    OF    DATES    AND    TIME.  IQJ 

curve  dill  not  look  like  the  sharp  curve  of  half  of  an 
"  8,"  and,  upon  very  careful  manipulation  of  the  back 
of  the  note  with  a  fine  instrument,  very  nearly  the 
whole  of  the  year-mark  "  90 "  was  replaced  and 
made  distinctly  visible.  Evidence  from  the  Stamp 
Office  showed  that  stamps  were  never  issued  post- 
dated (/). 

The  critical  examination  of  the  niternal  contents 
of  written  instruments,  perhaps  of  all  others,  affords 
the  most  satisfactory  means  of  disproving  their 
genuineness  and  authenticity,  especially  if  they  pro- 
fess to  be  the  productions  of  an  anterior  age.  It  is 
scarcely  possible  that  a  forger,  however  artful  in  the 
execution  of  his  design,  should  be  able  to  frame  a 
spurious  composition  without  betraying  its  fraudulent 
origin  by  peculiarities  of  writing  or  orthography 
characteristic  of  a  different  age  or  period,  or  by  the 
employment  of  words  of  later  introduction,  or  by  the 
use  of  them  in  a  sense  or  meaning  which  they  did 
not  then  bear,  or  by  some  statement  or  allusion 
not  in  harmony  with  the  known  character,  opinions, 
and  feelings  of  the  pretended  writer,  or  with  events 
or  circumstances  which  must  have  been  known  to 
him,  or  by  a  reference  to  facts,  or  modes  of  thought 
characteristic  of  a  later  or  a  different  age  from  that 
to  which  the  writing  relates.  A  writer,  eminent 
alike  for  his  critical  sagacity  and  for  his  imaginative 
genius,  declared  that  he  had  met  in  his  researches 
with  only  one  poem  which,  if  it  had  been  produced 
as  ancient,  could  not  have  been  detected  on  internal 

(/)  Howe  V.  Btircliardt  and iDwilicr^  Middlesex  Hilary  Sittings,  1891, 
coram  Wills,  J.  ;  see  pp.  413-414,  i7ifra. 


ig8  EXTRINSIC    INCULPATORY    INDICATIONS. 

evidence  (o-).  Judicial  history  presents  innunK^rnble 
examples  in  illustration  of  the  soundness  of  these 
principles  of  judi^Tnent,  of  which  the  following  are 
not  the  least  interesting. 

A  deed  was  offered  in  evidence,  bearing  date  the 
13th  of  November  in  the  second  and  third  years  of 
the  reign  of  Philip  and  Mary,  in  which  they  were 
called  "  king-  and  qtteen  of  Spain  and  both  Sicilies, 
and  dukes  of  Burgundy,  Milan,  and  Brabant," 
whereas  at  that  time  they  were  formally  styled 
'"'- princes  of  Spain  and  Sicily,"  and  Burgundy  was 
never  put  before  Milan,  and  they  did  not  assume 
the  title  of  king  and  queen  of  Spain  and  the  two 
Sicilies  until  Trinity  Term  following  {Ji), 

A  most  curious  and  instructive  case  of  this  kind 
was  that  of  Alexander  Humphreys,  before  the  High 
Court  of  Justiciary  at  Edinburgh,  April,  1839,  for 
forging  and  uttering  several  documents  in  support 
of  a  claim  advanced  by  him  to  the  earldom  of 
Stirling  and  extensive  estates.  One  of  those 
documents  purported  to  be  an  excerpt  from  a 
charter  of  Novodamus  of  King  Charles  I.,  bearing 
date  the  7th  of  December,  1639,  in  favour  of 
William  the  first  Earl  of  Stirling,  and  making  the 
honours  and  estates  of  that  nobleman,  which  under 
previous  grants  were  inheritable  only  by  heirs  viale^ 
descendible  in  default  of  heirs  male  to  his  eldest 
heirs  female,  without  division,  of  the  last  of  such 
heirs    male,   and    to    the    heirs   male   of    the    body 

(;?■)  2  Lockhart's  Life  of  Scott,  c.  ix. 

iji)  Mossom  V.  Ivy^  lo  St.  Tr.  555,  at  col.  616 ;  and  see  Co.  Litt.  ^b, 


VERIFICATION    OF    DATES    AND    TIME.  IQQ 

of  such  heirs  female  respectively.  This  excerpt 
purported  in  the  testatum  clause  to  be  witnessed  by 
Archbishop  Spottiswood  "our  chancellor,"  whereas 
he  died  on  the  26th  of  November,  1639,  and  it  was 
proved  by  the  register  of  the  Privy  Council  that  he 
resigned  the  office  of  Chancellor,  and  that  the  Great 
Seal  was  delivered  to  the  custody  of  James,  Mar- 
quess of  Hamilton,  on  the  I3tli  of  November,  1638, 
more  than  a  year  before  the  date  of  the  pretended 
charter,  and  that  there  was  an  interregnum  in  the 
office  of  Chancellor  until  the  appointment  of  Lord 
Loudon  on  the  30th  of  September,  1641.  A 
genuine  charter,  dated  four  days  after  the  pre- 
tended charter,  was  witnessed  by  James,  Marquess 
of  Hamilton.  The  circumstance  was  significant, 
that  in  the  catalogue  of  the  Scottish  chancellors, 
appended  to  Spottiswood's  History  and  other 
works,  no  mention  is  made  of  the  interval  between 
the  resignation  of  the  Archbishop  of  St.  Andrew's 
and  the  appointment  of  the  Earl  of  Loudon.  In 
the  margin  of  the  excerpt  was  a  reference  to  the 
register  of  the  Great  Seal  Book  57,  in  the  following 
form,  "Reg.  Mag.  Sig.  lib.  57;"  but  it  was  proved 
that  this  mode  of  marking  and  reference  did  not 
commence  until  1806,  when  the  registers  were  re- 
bound, in  order  that  they  should  have  one  title  ; 
and  that  previously  to  that  time  the  title  of  those 
documents  was,  "  Charters,  book  i.,  book  ii,,"  and 
so  on.  In  the  supposed  excerpt  the  son  of  the  first 
earl  was  styled  " nostra  consanguineo"  a  mode  of 
address  never  adopted  in  old  charters  in  regard  to  a 
commoner  ;  and  there  w^ere  other  internal  inconcrrui- 
ties.      This  document  consisted  of    several  leaves 


200  EXTRINSIC    INCULPATORY    INDICATIONS. 

Stitched  toq-cther,  wliich  were  of  a  brown  colour — as 
^vel!  under  the  stitching  as  where  open  ;  whereas  if 
the  stitcliing  had  been  old,  the  part  of  the  paper  not 
exposed  to  the  atmosphere  would  have  been  whiter 
than  the  rest.  Around  the  margin  of  this  excerpt  were 
drawn  red  lines  ;  but  it  was  proved  by  official  persons 
familiar  with  the  extracts  of  the  period,  that  such  lines 
were  not  introduced  into  the  Chancery  Office  till 
about  1780.  A  series  of  anachronisms  conclusively 
disproved  the  authenticity  of  several  other  documents 
adduced  by  the  prisoner  in  support  of  his  claim. 
One  of  those  documents  was  a  copper-plate  map 
of  Canada  by  Guillaume  de  I'lsle,  "Premier  G^o- 
graphe  du  Roi,  avec  privilege  pour  vingt  ans," 
bearing  the  date  of  1703;  on  the  back  of  which, 
amongst  other  supposed  attestations,  were  a  note 
purporting  to  be  in  the  handwriting  of  Flechier, 
Bishop  of  Nismes,  dated  the  3rd  of  June,  1707,  and 
another  note  purporting  to  be  in  the  handwriting  of 
Fenelon,  Archbishop  of  Cambray,  of  the  date  of  the 
1 6th  of  October,  1707.  It  was  proved  that  De  I'Isle 
was  not  appointed  geographer  to  the  king  until  the 
24th  of  August,  1718.  In  all  of  De  I'lsle's  editions 
of  his  map  the  original  date  of  i  703  was  preserved 
as  the  commencement  of  his  cop)  right,  but  on  any 
change  of  residence  or  of  designation,  he  made  a 
corresponding  change  in  the  original  copper-plate 
from  which  all  successive  issues  of  the  map  were 
engraved,  and  it  was  proved  by  a  scientific  witness 
that  the  title  of  De  I'Isle  had  been  actually  altered 
on  the  copper-plate  of  the  map  since  171 8.  It  was 
also  proved  that  Flechier  died  in  171 1  (the  letters- 
patent  for  the   installation  of  his  successor   in   the 


VERIFICATION    OF    DATES    AND    TIME.  201 

bishopric  of  Nismes  being  produced,  bearing  date  the 
26th  of  February  in  that  year),  and  that  Fenelon  died 
on  the  /th  of  January,  171 5.  Of  course  a  map  issued 
prior  to  1718  could  not  refer  to  his  appointment  of 
geographer  to  the  king,  and  any  attestation  of  the 
date  of  I  707,  or  by  a  person  who  died  before  1 7 1 8,  to 
a  map  containing  a  recognition  of  that  appointment 
must  of  necessity  be  spurious.  The  forger  of  the 
map  must  have  been  ignorant  of  the  fact  that  De 
risle  was  not  appointed  geographer  to  the  king  until 
1 718,  and  misled  by  the  date  of  1703  upon  his 
maps  ;  so  difficult  is  It  to  preserve  consistency  in  an 
attempt  to  impose  by  means  of  forgery.  The  very 
ink  with  which  some  of  the  pretended  attestations 
were  made  was  not  the  usual  ink  of  the  period,  but  a 
modern  composition  made  to  imitate  ink  turned  old. 
There  were  other  strong  grounds  for  impugning  the 
genuineness  of  these  various  documents,  which  the 
jury  unanimously  found  to  be  forged  (/). 

It  was  observed  by  Lord  Chief  Baron  Macdonald, 
that  there  is  nothing  of  which  we  are  so  little  in 
the  habit  as  measuring  with  any  degree  of  correct- 
ness small  portions  of  time  ;  and  that  if  anyone  were 
to  examine  with  a  watch  which  marks  the  seconds, 
how  much  longer  a  space  of  time  a  few  seconds  or  a 
few  minutes  really  are  than  people  in  general  conceive 
them  to  be,  they  would  be  surprised  ;  but  that  in 
general,  when  we  speak  of  a  minute,  or  an  instant, 

(i)  See  Report  of  the  Trial  of  the  claimant  of  the  Stirling 
Peerage,  by  Archibald  Swinton  ;  another  report  by  William  Turnbull ; 
Remarks  on  the  Trial,  by  an  English  Lawyer  ;  i  Townsend's  Modern 
State  Trials,  403  ;  and  Dickson's  Law  of  Evidence  in  Scotland,  vol.  L 
§  2S9,  p.  172. 


202  EXTRINSIC    INCULPATORY    INDICATIONS. 

we  can  hardly  be  understood  to  mean  more  than  tliat 
it  was  a  very  short  space  of  time  {k).  Nevertheless 
it  is  sometimes  of  the  highest  importance  accurately  to 
fix  the  exact  time  of  the  occurrence  of  an  event,  and 
a  difference  of  even  a  few  minutes  may  be  of  vital 
moment.  This  frequently  happens  in  cases  where 
the  defence  is  that  of  an  a//di.  On  a  charge  of 
murder,  where  the  defence  was  of  that  nature,  and  it 
was  essential  to  fix  the  precise  times  at  which  the 
prisoner  had  been  seen  by  the  several  witnesses  soon 
after  the  fatal  event  which  was  the  subject  of 
investigation,  the  object  was  satisfactorily  effected 
by  a  comparison  made  by  an  intelligent  witness  on 
the  same  day,  of  the  various  timepieces  referred  to 
by  the  several  witnesses,  with  a  public  clock  ;  thus 
affording  the  means  of  reducing  the  times  as  spoken 
to  by  them  to  a  common  standard  (/).  Post-office 
marks  are  often  of  great  importance  in  fixing 
disputed  dates;  but  the  defective  manner  in  which 
they  are  impressed  frequently  renders  them  useless, 
and  this  has  been  from  time  to  time  the  subject  of 
judicial  animadversion  (/;/). 

Scientific  testimony  grounded  on  the  state  of 
wounds  and  injuries  to  the  human  body,  or  on  its 
condition  of  decay,  is  frequently  employed  indirectly 
in  the  solution  of  questions  of  time  ;  but  cases  of 
this  nature  belong  to  the  department  of  medical 
jurisprudence. 

(/&)  J^ex  V.  Fa/c/i,  Gurney's  Report,  171  ;  see  pp.  390-395,  tn/ra. 

(/)  J^ex  V,  Tliornton,  see  pp.  244-249,  infra. 

{in)  By  Lord  Campbell,  L.  C.  J.,  mReg.  v.  Palmer,  see  pp.  344-351, 
iiifra  ;  and  by  the  Lord  Justice  Clerk  in  Reg.  \.  JMadc.eine  S/n/ih,  see 
pp.  300-310,  infra. 


AMERICAN    NOTES. 

[Note  to  Chapter  IV.] 

Ideritification  of  Person. 

•'  [Facts]  which  establish  the  identity  of  any  thing  or  person 
whose  identity  is  in  issue  or  is  or  is  deemed  to  be  relevant  to  the 
issue,  or  which  fix  the  time  or  place  at  which  any  such  fact  hap- 
pened, or  which  show  that  any  document  produced  is  genuine  or 
otherwise,  or  which  show  the  relation  of  the  parties  by  whom  any 
such  fact  was  transacted,  or  which  afforded  an  opportunity  for  its 
occurrence  or  transaction,  or  which  are  necessary  to  be  known  in 
order  to  show  the  relevancy  of  other  facts,  are  deemed  to  be  rele- 
vant in  so  far  as  they  are  necessary  for  those  purposes  respectively." 
Stephen's  Dig.  Evid.,  Art.  9. 

Personal  Peculiarities. 

Where  it  is  shown  that  a  blow  must  have  been  given  with  the 
left  hand,  it  may  be  shown  that  the  defendant  is  left-handed. 
Com.  V.  Sturtivant,  117  Mass.  131. 

Of  the  methods  of  identification  Hubback,  in  his  Evidence  of 
Succession,  48  Law  Library,  star  p.  448,  writes  :  "  On  the  features, 
the  most  obvious  and  peculiar  of  physical  characteristics.  Lord 
Mansfield  has  observed,  that  the  distinction  between  individuals 
in  the  human  species  is  more  discernible  than  in  other  animals. 
A  man  may  survey  ten  thousand  people  before  he  sees  two  faces 
perfectly  alike,  and  in  an  army  of  a  hundred  thousand  men,  every 
one  may  be  known  from  another.  Cases  of  persons  undistinguish- 
able  from  each  other  by  this  test  have,  nevertheless,  occasionally 
occurred.  .  .  .  Those  who  have  considered  this  subject  attach 
less  importance  to  the  features,  which  are  often  founti  to  undergo 
great  alteration,  than  to  peculiar  marks,  such  as  naevi,  cicatrices, 
fractures,  and  natural  deformities.  Sometimes  marks  which  have 
been  effaced  may  be  brought  out  by  proper  means.     A  criminal 


202  b  AMERICAN   NOTES. 

who  had  escaped  from  prison,  after  being  brantled,  and  appar- 
ently destroyed  the  mark  by  causing  an  eruption  over  the  whole 
surface,  but  he  was  long  afterwards  identified  by  Fodcr<^,  who  ap- 
plied a  cold  plate  of  metal,  which  made  the  other  parts  pale,  whilst 
the  fatal  letters  appeared  in  distinct  relief." 

Personal  Appearance. 

Upon  the  issue  of  identity  the  appearance  of  a  person  two 
years  before,  and  after  the  date  in  question,  is  competent.  Com. 
V.  Campbell,  155  Mass.  537. 

On  questions  of  identity,  the  memory  of  personal  appearance 
fifty  years  back  is  too  unreliable  to  be  considered.  Sperry  v. 
Tebbs,  20  Weekly  Law  Bulletin,  181. 

It  is  no  identifying  evidence  that  witnesses  met  a  man  in  the 
street  several  miles  away  from  the  scene  of  an  arson,  who  was 
about  the  size  and  height  of  the  defendant.  People  v.  Gotshall 
(Mich.),  82  N.  W.  274. 

Evidence  of  identification  is  admissible  even  though  it  be  not 
positive.  In  Com.  v.  Kennedy,  i  70  Mass.  18,  where  the  defendant 
was  charged  with  an  attempt  to  poison  another  by  sticking  some 
arsenic  under  the  crossbar  of  the  prosecuting  witness's  moustache 
cup,  the  following  testimony  was  allowed  :  "  An  apothecary  testi- 
fied that  he  sold  a  box  of  '  Rough  on  Rats  '  the  day  before  the  cup 
was  found,  and,  subject  to  examination,  was  allowed  to  testify  that, 
to  the  best  of  his  knowledge,  belief,  and  recollection,  he  sold  it  to 
the  defendant.  The  identity  of  a  third  person  always  is  a  matter 
of  inference  and  opinion." 

Where  criminal  intercourse  with  a  girl  under  a  certain  age  is 
charged,  it  is  proper  to  consider  her  appearance  as  indicating  her 
age.  Jones  v.  State,  106  Ga.  365  ;  Com.  v.  HoUis,  170  Mass. 
433  ;   People  v.  Elco,  113  Mich.  519. 

A  witness  or  a  party  may  be  required  to  stand  up  to  be  identi- 
fied.    Rice  V.  Rice,  47  N.  J.  Eq.  559. 

Where  one  is  asked  who  did  a  certain  thing,  an  answer  "  that 
man"  (pointing  to  the  defendant)  is  proper.  Com.  v.  Whitman, 
121  Mass.  361. 

The  State  may  bring  in  the  defendant's  partner  in  the  crime 
and  identify  him  as  having  been  with  the  defendant.  State  v. 
Gartrell,  171  Mo.  4S9. 


AMERICAN  NOTES.  202  C 

Photographs   Used  to  Identify. 

Photographs  and  portraits  are  admissible  to  prove  identity. 
Udderzook  v.  Com.,  76  Pa.  340  ;  Com.  v.  Connors,  156  Pa.  147  ; 
Bryant's  Estate,  176  Pa.  309. 

Bastardy  —  Identification  of  Father, 

To  show  resemblance  of  a  child  to  its  putative  father,  the  child 
may  be  exhibited  to  the  jury  for  their  judgment.  Crow  v.  Jordon, 
49  Ohio  St.  655  ;  Gaunt  v.  State,  50  N.  J.  L.  490  ;  Jones  v.  Jones, 
45  ^W.  144. 

Identification  by    Voice. 

Voice  used  as  a  mark  of  identification.  State  v.  Shinborn,  46 
N.  H.  502  ;   Com.  V.  Williams,  105  Mass.  67. 

Identification  by  voice  only,  when  witness  heard  defendant 
speak  only  twice  at  a  distance  of  seventy-five  yards  and  amid  the 
barking  of  dogs,  is  not  sufficient.     Patton  v.  State,  117  Ga.  230. 

"Jeremiah  Dowsing  deposed,  that  some  day  or  two  after  the 
murder,  heard  some  one  at  Noxubee  turnpike,  about  two  o'clock 
at  night,  calling  out ;  from  the  voice,  thinks  it  was  McCann  ;  did 
not  see  him;  had  known  him  before."  McCann  v.  State,  13 
Smedes  &  M.  (Miss.)  471,  480. 

A  witness  who  has  heard  the  defendant  talk  but  once  may 
testify  as  to  identification  by  the  voice,  but  the  jury  may  be 
instructed  not  to  convict  upon  that  evidence  alone.  Com.  7'. 
Williams,  105  Mass.  62  ;   Com.  v.  Hayes,  138  Mass.  185. 

Where  there  is  testimony  as  to  identification  by  voice,  the 
accused,  not  being  a  witness,  may  not  repeat  something  to  the 
jury  in  rebuttal.  Com.  v.  Scott,  123  Mass.  222.  See  also  John- 
son V.  Com.  115  Pa.  369. 

Wounds  on  Defendanf s  Person. 

Where  the  defendant  was  accused  of  robbing  and  the  prosecut- 
ing witness  testified  that  he  had  bitten  his  assailant  on  the  left  leg, 
it  was  allowed  to  be  shown  that  the  defendant  had  certain  bruises 
on  his  left  leg  that  might  have  been  made  by  human  teeth.  State 
V.  Jones,  153  Mo.  457. 

Where  the  deceased's  body  was  found  in  a  ditch,  testimony  is 
competent  to  show  that  the  defendant  was  seen  coming  out  of 


202  d  AMERICAN   NOTES. 

that  ditch  with  blood  on  his  coat  and  a  new  scratch  on  liis  face. 
Davis  V.  State,  126  Ala.  44. 

Where  the  defendant  is  charged  with  rape,  to  corroborate  the 
identification  by  the  prosecutrix,  it  may  be  shown  that  the  accused 
had  scratches  on  his  face  the  day  after  the  crime  and  that  he  had 
none  the  day  before.     State  v.  Fleming,  130  N.  C.  688. 

A  conviction  would  be  sustained  where  it  is  shown  that  the 
defendant  and  the  deceased  had  gone  together  to  the  spot  where 
the  deceased  was  found  with  her  throat  cut,  and  the  defendant's 
finger  appears  to  have  been  bitten  and  his  coat  is  torn.  Jones  v. 
State,  29  Tex.  App.  338. 

Where  burglars  had  been  frightened  away  by  firing  a  shotgun 
at  them,  it  was  shown  that  one  of  the  defendants  was  treated  that 
niglit  for  gunshot  wounds  in  the  face,  the  defendants  were  shown 
to  have  had  a  horse  and  buggy  that  night,  and  there  was  one  at 
the  scene  of  the  crime,  and  the  owner  swore  he  recognized  the 
voice  of  another.     State  v.  W'ines  (N.  J.),  46  Atl.  702. 

Identification  by  Appearatice  and  Condition  of  Clothing. 

Where  the  defendants  were  charged  with  a  crime,  and  the  State 
showed  that  it  was  raining  at  the  time  and  place  of  the  crime,  and 
that  clothing  belonging  to  the  defendants  was  found  hanging  in 
their  barn  wet,  while  other  articles  were  dry,  the  defendants  may 
prove  that  the  barn  leaked,  and  the  State  may  show  in  rebuttal 
that  the  barn  did  not  leak  until  long  after  the  date  of  the  crime. 
Kastner  v.  State  (Neb.),  79  N.  W.  713. 

Where  the  defendant,  charged  with  murder,  claimed  to  have 
been  elsewhere  and  to  have  just  returned  home  on  the  cars,  it  was 
shown  that  a  man  had  been  seen  to  ride  away  on  a  mule  from  the 
scene  of  the  crime,  and  when  the  defendant  was  arrested  at  his 
home  thirty  miles  from  that  place  his  trousers  had  hair  on  them  like 
that  of  the  mule,  and  the  mule  was  found  near  by  much  exhausted. 
This  identified  him  as  the  man  seen,  and  with  other  evidence  was 
sufficient  to  convict.     Chapman  v.  State,  34  Tex.  Cr.  R.  27. 

Defendant  was  identified  as  a  chicken  thief  by  tracks  in  the 
snow,  feathers  on  his  coat,  and  attempting  to  sell  the  stolen  prop- 
erty.    People  V.  Lyons,  51  N.  Y.  Supp.  811. 

There  was  mud  on  the  defendant's  clothes  like  that  in  a  cellar 
on  a   lot  adjoining    the    burglarized    house  where  stolen  articles 


AMERICAN   NOTES.  202  e 

were  concealed,  but  the  defendant  showed  that  such  mud  was 
common  on  all  the  streets.     People  v.  Cronk,  58  N.  Y.  Supp.  13. 

It  may  be  shown  that  the  clothing  of  one  accused  of  arson 
smelled  of  kerosene  and  that  the  fire  had  been  started  with  kero- 
sene.    People  V.  Bishop,  134  Cal.  682. 

Where  one  is  accused  of  setting  a  fire  with  kerosene,  it  may 
be  shown  that  there  were  kerosene  stains  on  his  shirt.  State  v. 
Kingsbury,  58  Me.  238. 

In  People  v.  Doneburg,  64  N.  Y,  Supp.  438,  where  a  person 
after  committing  arson  was  traced  across  a  ditch,  in  crossing 
which  it  appeared  that  he  had  fallen  on  his  knee  and  elbow,  evi- 
dence was  held  admissible  to  show  that  defendant's  clothing  was 
discolored  at  those  places. 

Blood  Stains. 

It  may  be  shown  that  a  suit  of  clothes  belonging  to  the  de- 
fendant had  blood  stains  on  it,  even  though  it  is  not  established 
that  he  wore  that  suit  on  the  day  of  the  murder.  People  v. 
Neufeld,  165  N.  Y.  43. 

In  Murphy  v.  State,  36  Tex.  Cr.  R.  24,  35  S.  W.  174,  the 
defendant  was  proved  to  have  had  blood  stains  on  his  shirt  and 
face. 

Other  cases  where  blood  stains  were  used  as  a  mark  of  identi- 
fication are  Cicely  v.  State,  13  Smedes  &  M.  (Miss.)  203;  Davis 
V.  State,  126  Ala.  44  ;  Newman  v.  State,  32  Tex.  Cr.  R. ;  Com. 
V.  Crossmire,  156  Pa.  304. 

Experts  are  allowed  to  testify  that  they  can  determine  whether 
certain  blood  is  human  or  not.  and  further  as  to  whether  the 
blood  in  question  is  human.  Com.  v.  Sturtivant,  117  Mass.  122  ; 
State  V.  Knight,  43  Me.  i,  133  ;  Knoll  v.  State,  55  Wis.  249. 

Evidence  of  a  test  by  physicians  as  to  a  spot  of  supposed 
blood  on  the  defendant's  clothing  is  admissible.  Beavers  v. 
State,  58  Ind.  530. 

One  who  is  not  an  expert  may  testify  that  certain  spots  seen 
by  him  are  blood  spots.  "  The  testimony  of  the  chemist  who 
has  analyzed  blood  and  that  of  the  observer  who  has  merely 
recognized  it,  belong  to  the  same  legal  grade  of  evidence  ;  and 
though  the  one  may  be  entitled  to  much  greater  weight  than  the 
other  with   the  jury,  the    exclusion  of  either   would   be  illegal." 


202/  AMERICAN    NOTES. 

People  V.  Gonzales,  35  N.  V.  49  ;   I'coiile  ?'.  Greenfield,  85  N.  Y. 
75,  39  Am.  Rep.  636;  Gaines  ?'.  Com.,  50  Pa.  330. 

Articles  0/  Property   Used  to  Llcniify. 

It  may  be  shown  that  the  deceased  had  a  number  of  S20  bills  ; 
that  after  the  homicide  the  defendant  changed  one  such  bill  and 
hid  others  in  a  cellar,  where  they  were  found.  State  v.  Gallivan, 
75  Conn.  326. 

\\\  People  V.  Hamilton,  137  N.  Y.  531,  the  defendant's  identi- 
fication as  the  murderer  of  his  wife  was  aided  by  the  finding  of  a 
cuff-button  near  her  body  like  an  odd  one  in  his  room,  the  find- 
ing of  a  razor  near  her  body,  and  the  fact  that  his  razor  was  gone, 
and  the  finiling  of  defendant's  cane  on  the  scene  of  the  crime. 

In  State  v.  Howard,  118  Mo.  127,  part  of  the  means  used  to 
identify  the  defendant  as  the  murderer  were  a  pocket-book  and  a 
manuscript  poem  found  near  the  body  and  shown  to  have  been  in 
the  possession  of  the  defendant  a  short  time  previously. 

Where  the  State  alleged  that  the  defendant,  after  shooting  the 
deceased  with  a  30-30  caliber  rifle,  fled  along  a  certain  road  in  a 
sparsely  settled  country,  it  was  allowed  to  prove  the  finding  of 
cartridges  of  30-30  caliber  along  that  road  two  miles  from  the 
scene  of  the  crime  and  two  weeks  later.  Horn  v.  State  (Wyo.), 
73  Pac.  705. 

In  the  case  of  People  v.  Durrant,  116  Cal.  179,  205,  where 
the  defendant  was  charged  with  the  murder  of  a  girl,  it  appeared 
that  the  rings  which  she  had  worn  were  after  her  death  sent  by 
mail,  wrapped  in  a  scrap  of  the  "  San  Francisco  Examiner,"  to 
the  girl's  aunt.  On  this  scrap  of  paper  were  written  two  names 
in  the  defendant's  handwriting,  one  being  the  name  of  defend- 
ant's classmate,  the  other  the  name  of  one  of  defendant's  in- 
structors. These  names,  with  admittedly  genuine  specimens  of 
defendant's  handwriting,  were  given  to  the  jury. 

In  King  v.  State  (Tex.),  67  S.  W,  410,  it  was  shown  that  de- 
fendant had  in  his  possession,  when  arrested  while  committing  a 
subsequent  burglary,  a  brace  taken  from  the  house  in  question. 

It  may  be  shown  that  defendant  stated  what  had  become  of 
part  of  the  goods  stolen,  and  that  he  had  been  seen  on  the  road 
between  the  scene  of  the  crime  and  the  place  where  he  was 
arrested.     State  v.  Armstrong,  170  Mo.  406. 


AMERICAN   NOTES.  202^ 

A  pistol  stolen  from  the  house  and  found  in  the  possession  of 
one  of  the  defendants  is  admissible  as  against  the  others  also. 
Terry  v.  State  (Tex.),  47  S.  W.  654. 

In  Com.  V.  Webster,  5  Cush.  295,  to  identify  the  defendant  as 
the  murderer  of  Dr.  Parkman,  it  was  proved  that  portions  of  the 
latter's  body,  his  teeth,  bones,  etc.,  were  found  about  the  medical 
college  where  Professor  Webster  was  employed. 

Gun-wadding. 

In  Williams  7'.  State  (Ark.),  16  S-  W.  816,  the  defendant  was 
charged  with  shooting  the  deceased  with  a  shotgun.  He  was 
tracked  by  the  sheriff  with  bloodhounds  from  the  place  of  the 
crime  to  his  home,  and  there  they  found  a  shotgun,  one  barrel 
of  which  had  recently  been  discharged.  The  gun-wadding  found 
at  the  scene  of  the  crime  was  just  like  that  in  the  undischarged 
barrel  of  the  gun,  and  the  defendant's  shoes  exactly  fitted  tracks 
leading  from  the  house  of  the  deceased. 

The  evidence  identifying  the  defendant  in  a  murder  case  as 
having  been  at  the  place  where  the  shot  was  fired  was  as  follows  : 
The  tracks  near  the  place  were  shown  to  be  like  his ;  at  his  house 
were  found  a  gun  lately  fired,  and  shot  and  wadding  like  that 
used  by  the  murderer ;  and  on  the  fence  where  the  shot  was  fired 
was  found  a  note  on  a  leaf  from  the  defendant's  note-book  and 
in  his  handwriting  with  threats  against  the  deceased.  Caldwell 
V.  State,  28  Tex.  App.  566. 

In  Freeman  v.  State  (Tex.),  72  S.  W.  looi,  the  wadding  of  a 
gun  fired  by  the  defendant  was  found  to  be  portions  of  a  news- 
paper, the  rest  of  which  was  still  in  the  defendant's  house. 

Other  Ci'imes. 

Evidence  of  another  crime  may  be  given  to  prove  identity. 
Goersen  v.  Com.,  99  Pa.  3S8. 

The  commission  of  other  crimes  by  the  defendant  may  be 
proved  to  identify  him  as  the  doer  of  the  act  charged.  People 
V.  Taylor,  136  Cal.  19  ;  Yarborough  i\  State,  41  Ala.  405  ;  Foster 
V.  State,  63  N.  Y.  619. 

To  identify  one  who  got  a  note  by  fraud,  it  is  permissible  to 
show  that  defendant  got  other  notes  from  other  persons  by  fraud. 
Brown  v.  Schock,  77  Pa.  471. 


202  //  AMERICAN  NOTES. 

"  The  next  assignment  of  error  complains  of  the  testimony  of 
William  ].  Horner,  lie  was  the  tenant  of  David  Berkey,  occu- 
])ying  his  farm.  In  the  morning  after  the  robbery,  he  discovered 
that  his  barn  hail  been  broken  open  during  the  night  and  a  pair 
of  horses,  bridles,  a  saddle,  and  a  blanket  had  been  taken  away. 
He  also  {oum\  that  tiie  straj)s  had  been  removed  from  his  fly  nets 
and  were  not  in  the  barn.  The  straps  were  soon  after  discovered 
at  Berkey's  house,  where  they  had  been  used  to  bind  his  limbs 
while  he  was  undergoing  torture.  The  horses,  with  the  other 
stolen  property,  were  found  later  in  the  morning  some  eight  or 
nine  miles  away  in  a  field  at  the  side  of  the  road  leading  from 
Berkey's  house  to  the  home  of  the  defendants.  An  examination 
of  the  ground  about  Berkey's  house  showed  that  during  the  night 
the  horses  had  been  tied  and  fed  near  by,  and  had  been  ridden 
by  the  robbers  along  the  highway  to  the  point  at  which  they  were 
found,  where  it  was  evident  they  had  been  abandoned,  their 
riders  completing  their  journey  on  foot.  The  testimony  of  Flor- 
ner  was  offered  for  the  purpose  of  laying  those  facts  before  the 
jury.  It  was  objected  to  because  it  related  to  another  offence 
than  that  for  which  the  defendants  were  indicted,  and  because  it 
was  not  proposed  to  show  that  the  defendants  were  seen  in  pos- 
session of  the  horses.  But  the  relevancy  of  this  testimony  did 
not  depend  on  whether  it  tended  to  show  the  commission  of  an- 
other crime,  but  on  whether  the  facts  were  so  connected  with  the 
crime  under  investigation  as  to  throw  any  light  upon  its  history. 
We  think  it  clear  that  this  testimony  was  explanatory  of  facts  that 
were  before  the  jury,  and  that  it  tended  to  show  how,  and  by 
what  route,  the  robbers  fled  from  Berkey's  house  ;  and  how  it  was 
possible  for  the  defendants  to  have  been  seen  so  early  in  the 
morning  of  the  3d  of  June  at  points  where  witnesses  placed  them, 
consistently  with  the  allegation  of  the  commonwealth  that  they 
were  the  perpetrators  of  the  crimes  at  Berkey's  house."  Com. 
z'.  Roddy,  184  Pa.  274,  2S8. 

Footprints. 

Footprints  about  the  scene  of  the  crime,  or  leading  to  or 
from  it,  may  be  shown  in  evidence  to  correspond  with  the  feet  or 
shoes   of  the   accused.     Young  v.  State,  68    Ala.  569;  Jones  v. 


AMERICAN   NOTES.  202  i 

State,  6t,  Ga.  395  ;  Gilmore  v.  State,  99  Ala.  154;  Whetston  v. 
State,  31  Fla.  240. 

la  Com.  z'.  Sturtivant,  117  Mass.  122,  where  the  defendant's 
shoes  were  shown  to  fit  certain  tracks,  the  defendant  denied 
having  worn  them  recently.  The  State  then  showed  that  they  had 
been  recently  washed,  as  tliough  to  remove  mud  on  them. 

To  identify  defendant  as  a  burglar,  it  may  be  shown  that  he  was 
seen  running  from  the  place  and  that  his  shoe  tracks  corresponded 
with  tracks  about  the  place.     People  v.  Rowell,  133  Cal.  39. 

Defendant  was  proved  to  have  been  the  one  who  had  stolen 
certain  alfalfa  seed  by  foot  tracks  about  the  granary,  the  tracks  of 
two  horses  toward  his  house,  an  envelope  addressed  to  defendant 
found  near  the  tracks,  and  by  the  fact  that  he  had  later  sold  some 
alfalfa  seed  in  sacks  identified  as  belonging  with  the  granary. 
State  V.  Tucker  (Ore.),  61  Pac.  894. 

Where  the  accused  had  started  barefoot  toward  a  building  with 
the  intention  of  setting  it  on  fire,  evidence  of  the  print  of  a  bare 
foot  several  hundred  yards  from  the  burned  house,  but  in  the 
direction  accused  was  going,  was  admitted.  Ethridge  v.  State 
(Ala.),  27  So.  320. 

In  State  v.  Willmeier  (Iowa),  72  N.  W.  275,  to  identify  defend- 
ant as  having  set  a  barn  on  fire,  tracks  similar  to  his  were  testified 
to,  although  they  were  not  discovered  for  nearly  a  week,  when  the 
snow  covering  them  had  melted. 

A  father  was  identified  as  the  murderer  of  his  daughter  by  blood 
prints  from  her  bed  to  his  room  and  by  the  facts  that  there  were 
no  tracks  whatever  leading  from  the  house  and  the  ground  was 
soft.  A  motive  and  other  circumstances  were  also  shown.  But- 
ler V.  State  (Ark.),  63  S.  W.  46. 

Defendant  was  proved  to  have  set  fire  to  some  buildings  by 
proof  that  tracks  which  his  shoes  might  have  made  led  to  his 
house,  and  further  proof  of  motive  on  his  part.  State  v.  Shines, 
125  N.  C.  730. 

In  Newman  v.  State,  32  Tex.  Cr.  R.,  part  of  the  evidence  on 
which  the  defendant  was  convicted  was  as  follows  :  The  defend- 
ant's horse  was  seen  hitched  not  far  from  the  house  of  the  de- 
ceased on  the  night  of  the  murder,  peculiar  tracks  which  fitted 
defendant's  shoes  led  from  the  house  to  the  place  where  the  horse 
had  been  tied,  and  spots  that  appeared  to  be  blood  were  found 
on  defendant's  shirt. 


202J 


AMERICAN   NOTES. 


Tracks  from  the  place  of  a  burglary  to  a  camp  where  defend- 
ant had  been.      Holiciigshead  v.  State  (Tex.),  67  S.  W.  114. 

Voice  and  peculiar  track  used  to  identify  defendant.  I'atton 
V.  State,  117  Ga.  230. 

Peculiar  tracks  which  defendant's  shoes  exactly  fitted  used  to 
prove  defendant  guilty  of  arson.     Weeks  v.  State  (Ga.),  30  S.  E. 

252. 

Defendant  cannot  be  compelled  to  make  a  footprint  for  com- 
parison.    Stokes  V.  State  (Pa.),  8  Leg.  Gaz.  166. 

Horse  and  IVagon   Tracks. 

In  Cook  7'.  State  (Miss.),  28  So.  833,  the  defendants  were 
traced  from  the  scene  of  the  burglary  to  their  home  by  the  track 
of  a  wagon  having  a  wobbly  wheel  and  the  track  of  a  horse  with  a 
broken  hoof.  They  were  shown  to  have  such  a  wagon  and  such 
a  horse. 

Defendant  was  identified  as  having  stolen  bales  of  cotton  by 
proof  that  there  were  wagon  tracks  from  the  place  where  the  bales 
had  been  hidden  to  the  defendant's  house,  that  his  wagon  was 
muddy,  and  that  his  team  was  sweaty.  Cole  v.  State  (Miss.), 
4  So.  577. 

In  Lancaster  v.  State,  36  Tex.  Cr.  R.  16,  it  appeared  that  the 
defendant  had  been  seen  driving  in  a  single  buggy  toward  the 
home  of  the  deceased  ;  that  the  tracks  about  the  scene  of  the  crime 
showed  that  such  a  horse  and  buggy  had  been  driven  near  where 
the  corpse  lay,  where  the  occupant  had  got  out  and  walked  to  the 
corpse,  then  to  the  house,  and  back ;  that  the  shoe  tracks  of  the 
horse  were  peculiar,  and  were  like  those  of  the  horse  defendant 
had  driven.     The  defendant  was  convicted. 

Tracks  —  Evidence  in  Rebuttal. 

Tracks  to  a  building  which  defendant  was  accused  of  blowing 
up  were  shown  not  to  have  been  his  by  the  fact  that  they  were 
made  by  broad-toed  shoes  while  his  shoes  had  narrow  toes.  Lan- 
ders V.  State  (Tex.),  47  S.  W.  1008. 

In  Grant  v.  State  (Tex.),  58  S.  W.  T025,  the  State  showed  that 
a  wagon  containing  oats  stolen  from  a  granary  and  drawn  by  a  mule 
and  a  horse  could  be  traced  from  the  granary  to  near  the  defend- 
ant's house,  and  that  there  were  shoe  tracks  about  the  size  of 


AMERICAN   NOTES.  202  k 

defendant's  shoes.  The  defendant  proved  that  others  beside  him- 
self owned  a  wagon,  a  mule,  and  a  horse,  and  that  others  wore 
similar  shoes. 

Where  defendant's  voice  was  thought  to  be  recognized  as  that 
of  a  burglar  and  where  tracks  near  by  were  identified  as  his,  he 
proved  that  he  had  that  day  loaned  his  shoes  to  another,  who  had 
since  disappeared.  Identification  not  sufficient.  Porter  v.  State 
(Tex.),  50  S.  \V.  380. 

Tracing  by  Bloodhound. 

It  may  be  shown  that  a  bloodhound,  put  on  the  track  of  a  crim- 
inal, followed  the  track  to  the  accused.  Simpson  z;.  State,  in 
Ala.  6  ;   Pedigo  v.  Com.,  103  Ky.  41. 

Evidence  of  the  tracking  of  an  alleged  criminal  by  a  blood- 
hound is  admissible  in  a  burglary  case  on  the  question  of  identity. 
State  V.  Hall,  4  Low.  Dec.  (Ohio)  147,  3  Nisi  Prius,  125.  And 
the  rule  is  the  same  in  a  murder  case.  State  v.  Brooks,  9  West. 
Law  Journal,  109;  Williams  v.  State  (Ark.),  16  S.  W.  816. 

Mea?is  of  Idcntijicaiion  in    General. 

In  the  case  of  People  v.  How,  2  Wheel.  Crim.  Cas.  (N.  Y.) 
4[0,  the  defendant  was  convicted  of  murder  on  the  following  evi- 
dence, although  he  was  not  seen  and  his  voice  was  not  recognized. 
He  had  had  business  trou'oles  with  the  deceased  and  had  threat- 
ened to  kill  him  if  he  did  not  settle.  He  was  seen  shortly  before, 
trying  to  conceal  under  his  coat  something  that  might  have  been 
a  gun.  He  was  gone  from  home  at  just  the  time  of  the  murder, 
and  returned  at  a  time  possible  to  the  actual  murderer.  His 
horse,  found  blanketed  and  wet  with  sweat,  he  falsely  said  had 
been  sick.  A  man  who  might  have  been  the  defendant  was  seen 
riding  toward  the  home  of  the  deceased,  and  shortly  after  the  time 
of  the  crime  was  seen  riding  rapidly  back.  The  defendant  was 
shown  to  have  a  rifle  with  the  barrel  cut  short  off,  so  that  it  might 
be  concealed  under  the  coat.  The  rifle  showed  traces  of  having 
been  fired  lately,  it  had  horsehair  on  it,  and  the  priming  was  damp. 
The  rifle  carried  a  ball  like  that  found  in  a  beam,  where  it  had 
lodged  after  passing  through  the  deceased.  The  defendant  later 
confessed  his  guilt. 

In  State  ik  Orr,  64  Mo.  339,  the  defendant  was  shown  to  be 
the  murderer  of  the  deceased  by  the  following  evidence  :   He  was 


202  /  AMERICAN   NOTES. 

shown  to  have  loft  home  on  the  day  of  tlic  crime  chessetl  in  a  bhie 
army  overcoat  and  riding  a  dark  horse  with  a  partner  in  the  enter- 
prise ricHng  a  white  horse.  One  of  them  had  a  square  gin  bottle. 
They  were  seen  on  the  road  not  far  from  the  home  of  the  deceased. 
Near  by  two  horses  had  been  hitched  to  trees,  and  that  one  of 
them  was  white  was  shown  by  hair  rubbed  on  the  bark.  A  square 
gin  bottle  lay  on  the  spot.  Shortly  after  the  crime  two  men  an- 
swering their  description  were  seen  riding  away  rapidly.  Later 
the  defendant  had  much  money,  while  before  he  had  none.  He 
spoke  of  it  as  blood  money.  He  did  not  try  to  explain  his  absence 
from  home  on  that  day. 

In  the  case  of  Cicely  v.  State,  13  Smedes  «&  M.  (Miss.)  203,  to 
identify  the  accused  as  the  murderer  of  a  whole  family,  it  was 
shown  that  there  were  bloody  footprints  on  the  floor  and  one  set 
of  footprints  leading  from  the  house,  all  of  which  corresponded 
with  the  defendant's  feet ;  that  the  murder  was  done  with  a  broad- 
axe,  and  that  on  the  dress  of  the  accused  were  many  specks  and 
spots  of  blood  ;  that  the  defendant  had  secreted  on  her  person 
the  purse  of  the  deceased  with  money  in  it,  and  that  the  pocket  of 
deceased's  trousers  was  bloody  as  from  a  bloody  hand  thrust  in ; 
that  defendant  did  not  know  the  amount  of  money  in  the  purse. 

Defendant  identified  by  evidence  of  his  presence  in  the  neigh- 
borhood, tracks  leading  to  his  home,  and  his  possession  of  a 
weapon.     Howard  27.  Com.,  24  Ky.  Law  Rep.  950,  70  S.  W.  295. 

S!/ffi<:ie?icy  of  Identification. 

An  example  of  an  identification  held  to  be  sufficient  is  to 
be  found  in  Com.  v.  Roddy,  184  Pa.  274,  289.  The  following  is 
the  deceased's  testimony  :  "  Two  men  came  into  my  bedroom. 
I  asked  them  what  they  wanted  here,  and  one  of  them  said, 
'  Money,  by  God,  and  we  will  have  it.'  Both  men  had  revolvers, 
and  said,  '  Do  you  see  these?  '  I  said,  '  Yes.'  They  told  me  if  I 
had  any  prayers  to  say  I  was  to  say  them,  that  they  would  shoot 
me.  I  told  them  to  shoot,  but  they  did  not.  Then  they  tied  me, 
both  hands  and  feet,  and  carried  me  out  of  bed  into  a  rocking- 
chair  and  hit  me  in  the  mouth,  knocking  a  tooth  loose.  Then 
they  ransacked  the  safe.  I  told  them  my  money  was  in  my  vest. 
They  got  it;  it  was  about  $125  in  paper  and  silver.  They  burned 
my  feet  some  before  getting  my  money.    They  continued  to  burn 


AMERICAN   NOTES.  202  m 

my  feet,  demanding  more  money  or  government  bonds.  They 
first  burned  my  feet  with  paper ;  afterwards  with  oil  lamps  and 
tallow  candles.  They  ransacked  the  house  from  cellar  to  attic. 
They  went  to  the  cellar,  brought  up  pies,  cakes,  and  milk,  and  eat 
and  drank.  Then  they  left  my  house,  and  I  am  satisfied  the  two 
Roddy  boys,  brought  to  my  house  by  the  officers,  are  the  same 
that  robbed  and  tortured  me."  This  is  a  vivid  statement  of  the 
occurrences  of  that  night,  showing  the  opportunity  Berkey  had  to 
see  his  torturers,  to  know  their  voices,  their  figures,  their  move- 
ments, their  eyes,  the  color  of  their  hair,  and  their  relative  size 
and  manners.  Every  peculiarity  of  each  of  them  must  have  been 
literally  burned  into  the  memory  of  both  David  Berkey  and  his 
wife.  They  were  brought  to  the  house  of  their  victim.  He 
looked  at  them  to  see  if  they  were  the  same  men  he  had  seen  on 
the  night  of  the  2d  of  June.  His  conclusion  is,  "  Yes.  I  am 
satisfied  they  are  the  same  men.  My  mind  is  at  rest  on  the  sub- 
ject. I  have  no  doubt."  This  was  a  distinct  identification,  and 
plainly  admissible. 

.  Testimony  that  the  offender  "  looked  pretty  near  like  "  the 
accused  is  not  sufficient  identification.  Com.  v.  Snow,  14  Gray 
(Mass.),  3S5. 

Positive  direct  evidence  of  the  identity  of  the  accused  is  not 
necessary  if  the  jury  are  satisfied  of  the  fact.  Com.  ?',  Cunning- 
ham, 104  Mass.  545. 

In  the  interesting  case  of  Udderzook  v.  Com.,  76  Pa.  340,  the 
motive  for  murder  was  shown  to  be  the  desire  to  obtain  insurance 
money.     The  circumstances  were  as  follows  : 

The  defendant  and  the  deceased  conspired  to  defraud  certain 
insurance  companies.  In  pursuance  of  the  scheme,  the  deceased, 
W.  S.  Goss,  insured  his  life  for  $25,000,  Goss  was  thereafter  last 
seen  in  his  shop  in  company  with  defendant  and  a  neighbor. 
After  they  had  gone  Goss's  shop  burned,  and  a  body  supposed 
his,  was  found.  The  beneficiary  in  the  policies,  aided  by  her 
brother-in-law,  the  defendant,  tried  to  collect  the  money.  More 
than  a  year  later  the  defendant  was  seen  in  company  with  one 
A.  C.  Wilson  at  Jennerville,  Pa.  In  the  evening  they  left  that 
town  together,  driving  in  the  direction  of  Penningtonville.  The 
defendant  reached  Penningtonville  alone,  and  his  companion  was 
never  afterwards  seen  alive.  When  the  defendant  was  asked  what 
had  become  of  his  companion,  he  replied  that  he  had  left  him  at 


20J  ;/  AMERICAN   ^•OTES. 

Parkersburg.  Later  this  companion's  body  was  found,  cut  into 
pieces,  and  i)uii(.d  in  two  holes  in  the  woods  between  Jennerville 
and  Pt-niiingionville.  The  question  was  to  identify  this  body  as 
that  of  W.  S.  Goss  and  to  show  that  he  and  A.  C.  Wilson  were 
one  and  the  same.  Wilson's  movements  were  traced  from  about 
the  time  of  Goss's  disappearance,  and  he  was  shown  to  have  lived 
with  great  privacy.  At  Jennerville  he  and  the  defendant  had 
showed  a  desire  for  great  privacy.  A  witness  identified  a  photo- 
graph of  Goss  as  being  also  that  of  Wilson.  Letters  written  by 
AVilson  were  in  the  handwriting  of  Goss.  He  wore  a  peculiar 
ring  belonging  to  Goss.  Wilson  had  on  one  occasion  recognized 
one  A.  C.  Goss  as  his  brother  and  was  shown  to  have  corresponded 
with  him.  Wilson  and  Goss  were  alike  drunkards.  The  jury 
found  these  circumstances  sufificient  to  identify  the  body  found 
as  that  of  A.  C.  Wilson  and  of  W.  S.  Goss  also,  and  the  de- 
fendant was  convicted. 

To  show  that  defendant  was  guilty  of  arson,  it  was  shown  that 
tracks  might  have  been  made  by  No.  9  shoes  and  his  were  that 
size,  that  in  crossing  a  ditch  the  criminal  had  fallen  on  his  knee 
and  elbow,  and  that  defendant's  clothing  was  slightly  discolored  at 
those  places.  Held  not  sufficient  to  identify.  People  v.  Done- 
burg,  64  N.  Y.  Supp.  438. 

Although  defendant's  tracks  were  peculiarly  like  those  found  in 
the  snow  leading  from  a  burned  building  toward  but  not  near 
defendant's  home,  he  was  not  sufficiently  identified.  Green  v. 
State,   III  Ga.   139. 

Bertillon  Method  of  Ide?iti/yifig  Criminals. 

As  to  methods  of  identifying  persons,  the  following,  taken  from 
the  ISLiryland  Law  Record  and  found  in  9  Grim.  Law  Magazine, 
372,  is  of  interest : 

'•'  The  latest  method  of  identifying  prisoners  which  has  been 
introduced  into  France  by  M.  Alphonse  Bertillon,  and  which  is 
now  successfully  practised,  not  only  in  the  chief  French  prisons, 
but  in  Russia  and  Japan  as  well,  is  the  exact  measurement  of  the 
prisoner  on  his  arrival  at  gaol.  His  waist,  the  length  and  width 
of  the  head,  the  left  middle  finger,  the  left  foot,  the  outstretched 
arms,  and  three  other  fingers  on  the  left  hand,  the  left  arm  from 
the  elbow  to  the  wrist,  and  the  length  and  width  of  the  ear  are 


AMERICAN   NOTES.  2020 

rneasured,  and  the  color  of  the  eyes  and  any  particularities  are 
noted  down.  A  photograph  is  also  immediately  taken,  and  by 
these  means  the  many  mistakes  which  have  been  made  by  trust- 
ing to  a  photographer  only  are  avoided.  The  fact  that  during 
the  two  years  since  this  mode  has  been  in  operation  eight  hundred 
and  twenty-six  habitual  criminals  who  presented  themselves  under 
an  assumed  name  have  been  identified  in  France,  shows  that  M. 
Bertillon's  method  is  superior  to  any  other.  It  is  stated  that 
habitual  criminals,  particularly  English  pickpockets,  are  so  con- 
vinced of  the  infallibility  of  the  method  that  they  will  on  no 
account  submit  to  the  measurement,  and  offer  violent  resistance 
whenever  the  attempt  is  made  to  measure  them.  In  such  cases 
we  are  assured  that  it  is  nearly  always  sufficient  to  measure  the 
inside  of  the  hat  and  the  boots." 


Personal  Peculiarities  for  Identification. 

The  following  story  of  the  identification  of  a  criminal  is  derived 
from  the  London  Tid-Bits  :  A  small  lodging-house  in  the  City 
Road  was  one  morning  found  to  be  the  scene  of  a  mysterious 
crime.  The  occupant  of  the  ground  floor  had  been  discovered 
seated  by  the  table  dead,  his  head  resting  on  his  folded  arms, 
and  a  small  penknife  buried  in  his  temple.  When  the  police 
arrived  the  body  had  not  been  moved,  but  in  spite  of  their  careful 
search,  no  clue  to  the  crime  revealed  itself.  That  he  was  not 
alone  on  the  preceding  night,  a  couple  of  glasses  and  an  empty 
whiskey  bottle  clearly  testified. 

Dornton,  the  detective,  first  interviewed  the  landlord.  The 
deceased  could  not  have  returned  until  very  late.  He  frequented 
a  public  sporting-house  in  the  neighborhood,  and  was  believed  to 
obtain  a  living  by  betting. 

The  detective  turned  over  the  letters  of  the  deceased.  Only 
one  seemed  of  any  importance,  and  that  a  short,  ill-spelt  note, 
naming  an  outsider  as  the  winner  of  the  St.  Leger,  and  advising 
the  deceased  to  back  it  heavily.  The  race  had  been  run  the 
preceding  day,  and  the  outsider  had  won.  If  the  murdered  man 
had  acted  on  his  correspondent's  advice  he  should  be  in  pos- 
session of  a  considerable  sum  of  money.  But  with  the  exception 
of  a  few  coppers,  nothing  of  value  was  found. 


202/  AMERICAN   NOTES. 

At  last,  (Icsjiairing  of  obtaining  any  further  information  on  the 
scene,  Dornton  was  about  to  close  his  investigation. 

As  he  gave  one  final  glance  before  departing,  something  in  the 
threadbare  carpet  caught  his  attention.  Stooping,  he  picked  up 
a  semi-circular  i)icce  of  coarse  finger-nail,  marked  by  a  fracture 
extending  completely  across  it,  which  had  continued,  probably, 
some  distance  along  the  entire  nail.  Round  this  the  detective 
wove  his  theory  of  the  crime. 

The  deceased,  already  probably  half  drunk,  had  brought  with 
him,  to  finish  their  carousal,  some  casual  acquaintance.  While 
the  host  was  becoming  more  and  more  unconscious,  his  guest, 
drinking  but  little,  determined  to  rob  him  of  his  day's  winnings. 
Irritated  by  the  broken  nail  catching  in  his  clothing,  he  with  a 
penknife  trimmed  it  as  closely  as  possible  ;  then,  seeing  his  com- 
panion completely  at  his  mercy,  murdered  him, 

Carefiilly  guarding  this  slight  scrap  of  evidence,  after  a  moment's 
reflection,  Dornton  made  his  way  to  the  public  house  mentioned 
as  having  been  frequented  by  the  deceased.  His  attention  was 
speedily  concentrated  on  one  man.  In  spite  of  the  assumed 
jauntiness  of  his  manner,  the  latter  was  decidedly  ill  at  ease,  and 
his  eyes  continually  wandered  to  the  door.  The  low  felt  hat  and 
cheap  kid  gloves  concealing  his  hands  had  the  appearance  of 
having  been  recently  purchased,  though  the  state  of  his  boots  and 
clothing  suggested  anything  but  an  air  of  affluence. 

Under  the  pretence  of  obtaining  a  light,  Dornton  moved,  glass 
in  hand,  to  where  the  object  of  his  suspicions  carelessly  lolled,  and 
stumbling,  as  if  by  accident,  completely  saturated  the  gloves 
with  its  contents.  The  stranger  angrily  tore  them  ofif,  and,  on 
the  middle  finger  of  the  left  hand,  revealed  to  the  detective's 
watchful  eye  a  short,  coarse  nail,  broken  nearly  to  the  quick. 

A  few  minutes  later  he  was  inside  a  cab,  journeying  to  the 
police  station,  and  his  full  confession  at  the  inquest  gave  Dornton 
the  satisfaction  of  having  his  theory  completely  verified. 

Identification  of  Articles  of  Property.  —  Means  of 
Identifybig  Property. 

To  identify  certain  watches  in  possession  of  defendants  as  the 
ones  stolen,  the  owner  of  the  store  may  give  in  evidence  the  bills 
showing  the  numbers  on  the  watches.  State  v.  Fitzgerald,  72 
Vt.  142. 


AMERICAN   NOTES.  202  q 

"  A  recent  case  occurred  in  this  Court  where  one  was  indicted 
for  murder  by  stabbing  the  deceased  in  the  heart  with  a  dirk- 
knife.  There  was  evidence  tending  to  show  that  the  prisoner 
had  possession  of  such  a  knife  on  the  day  of  the  homicide.  On 
the  next  morning,  the  han  lie  of  a  knife,  with  a  small  portion  of 
the  blade  remaining,  was  found  in  an  open  cellar  near  the  spot. 
Afterwards,  upon  -x  post  mortem  examination  of  the  deceased,  the 
blade  of  a  knife  was  found  broken  in  his  heart,  causing  a  wound 
in  its  nature  mortal.  Some  of  the  witnesses  testified  to  the  iden- 
tity of  the  handle,  as  that  of  the  knife  previously  in  the  possession 
of  the  accused.  No  one,  probably,  could  testify  to  the  identity  of 
the  blade.  The  question,  therefore,  still  remained,  whether  that 
blade  belonged  to  that  handle.  Now,  when  these  pieces  came  to 
be  placed  together,  the  toothed  edges  of  the  fracture  so  exactly 
fitted  each  other  that  no  person  could  doubt  that  they  had  be- 
longed together,  because  from  the  known  qualities  of  steel,  two 
knives  could  not  have  been  broken  in  such  a  manner  as  to  pro- 
duce edges  that  would  so  precisely  match."  Shaw,  C.  J.,  in 
Com.  V.  Webster,  5  Cush.  295,  314. 

Where  the  defendant  is  charged  with  the  larceny  of  gold  coins, 
it  may  be  proved  that  there  were  found  in  his  possession  the 
same  number  of  gold  coins  as  was  taken  from  the  owner,  and 
that  they  were  of  the  same  denominations.  People  v.  Piggott, 
126   Cal.   509. 

Where  the  handle  of  the  hammer  used  in  a  homicide  was  found 
on  the  premises  of  the  defendant,  and  much  gold  coin  belonging 
to  the  deceased  was  found  in  possession  of  the  wife  of  defend- 
ant, while  at  the  same  time  it  was  shown  that  defendant  had  had 
no  work  for  some  time,  and  an  attempted  alibi  was  broken  down, 
the  evidence  was  held  sufficient  to  sustain  a  conviction.  State  v. 
Craemer,  12  Wash.  217. 

An  illiterate  witness  may  identify  a  document  by  its  general 
appearance.     Com.  v.  Meserve,  154  Mass.  64. 

Before  possession  of  the  stolen  goods  can  be  used  as  the  basis 
of  an  inference  of  guilt,  the  goods  must  be  proved  to  be  identi- 
cal with  these  belonging  to  the  party  injured  by  the  crime.  Yet 
such  identification  need  not  be  absolute.  It  would  be  sufficient 
to  show  that  they  are  of  the  same  kind  as  the  goods  stolen,  and 
were  found  with  other  property  stolen  at  the  same  time  that  Ls 
positively  identified.     Dillon  v.  People,  i  Hun,  670. 


202  r  AMERICAN   NOTES. 

The  identification  of  stolen  goods  by  the  owner  may  be  suf- 
ficient, even  though  he  was  allowed  to  inspect  them  before  being 
rc(|uired  to  describe  them.     State  v.  Lnll,  37  Me.  246. 

The  identification  of  a  shirt  is  sufficient  when  a  witness  testi- 
fies that  she  made  it  herself  and  knows  the  sewing.  Lancaster  v. 
State,  91  Tenn.  267. 

Laundry  Marks. 

The  contents  of  a  valise  may  be  identified  as  belonging  to  a 
certain  deceased  person  by  comparing  laundry  marks  on  clothing 
in  the  valise  with  similar  marks  on  clothing  left  by  the  deceased 
in  his  trunk.     State  v.  Lucey  (Mont.),  61  Pac.  994. 

Label  on  Barrels. 
The  label  on  a  barrel  of  beer  was  admitted  to  identify  the  bar- 
rel and  the  place  from  whence  it  came.     Com.  v.  Collier,   134 

Mass.  203. 

Color  and  Smell  of  Alcohol. 

To  prove  an  arson,  a  witness  may  testify  as  to  the  contents  of 
a  bottle  found  near  by,  that  she  knew  the  contents  were  alcohol 
by  the  color  and  smell.     People  v.  Fitzgerald,  137  Cal.  546. 

Color  of  Paper. 
Where  it  was  shown  that  the  defendant  was  given  a  certain 
check  and  that  when  arrested  he  had  chewed  a  bit  of  paper  be- 
yond recognition,  the  chewed-up  wad  may  be  shown  to  be  of  the 
same  color  as  other  checks  like  the  one  given  him.  People  v. 
Considine,  105  Mich.  149. 

Cattle  Brands. 

In  many  western  States  and  in  Canada  there  are  statutes  mak- 
ing the  presence  of  a  registered  brand  on  cattle  evidence  as  to 
the  ownership  of  such  cattle.  Colo.  Mills  Ann.  Stat.,  §§  4240, 
4251.  But  an  unrecorded  brand  may  be  admissible  as  a  mark 
of  identification.     Chestnut  v.  People,  21  Colo.  512. 

To  identify  a  certain  hide  as  that  of  a  cow  that  had  been  stolen, 
it  is  proper  to  put  in  evidence  pieces  of  the  hide,  which,  when 
put  with  the  main  portion,  tend  to  make  out  the  brand.  Hen- 
dricks V.  State,  56  S.  W.  55  (Tex.). 


AMERICAN   NOTES.  202  S 

A  recorded  brand  is  evidence  of  the  ownership  of  an  animal 
marked  with  the  brand.     Alexander  v.  State,  24  Tex.  App.  126. 

Earmarks  on  animals  alleged  to  have  been  stolen,  testified  to  by 
the  claimant  as  his  mark,  are  some  evidence  of  ownership. 
People  V.  IJolanger,  71  Cal.  17. 

A  brand  on  a  horse  may  be  proved  to  establish  identity  of  the 
horse,  even  though  it  is  not  the  brand  of  the  alleged  owner. 
Horn  V.  State.  30  'I'ex.  App.  541. 

Where  defendant  was  charged  with  stealing  a  certain  horse 
which  he  had  sold,  the  only  evidence  that  the  horse  sold  was  the 
horse  stolen  was  that  it  bore  the  same  brand.  The  evidence  of 
identity  was  not  sufficient,  because  it  was  shown  that  the  owner  of 
the  stolen  horse  had  sold  to  third  parties  other  horses  with  his 
brand  on  them.     Horn  v.  State,  30  Tex.  App.  541. 

A  mule  alleged  to  have  been  stolen  was  identified  by  a  pecul- 
iarly shaped  brand.     State  v.  Hill,  96  Mo.  35  7. 

Bullets,   Cartridges^  and  Gun-wadding. 

Winchester  rifle  shells  marked  "  W.  R.  A.  Co.  W.  C.  F.  40-65  ' 
were  used  to  identify  the  defendants  as  having  shot  the  deceased 
in  People  v.  Gibson,  106  Cal.  458. 

Where  evidence  tends  to  show  that  the  bullet  causing  death 
of  deceased  was  of  38-caliber,  the  defendant  may  be  shown  to 
have  had  a  38-caliber  revolver  at  the  time  of  the  shooting  (State 
V.  Barrett,  40  Minn.  65)  ;  or  that  in  the  defendant's  trunk  were 
found  cartridges  of  the  same  caliber.  People  v.  Minisci,  12  N.  Y. 
St.  Rep.  719. 

In  Freeman  v.  State  (Tex.),  72  S.  W.  looi,  the  wadding  of  a 
gun  fired  by  the  defendant  was  found  to  be  portions  of  a  news- 
paper, the  rest  of  which  was  still  in  the  defendant's  house. 

It  may  be  shown  that  on  defendant's  premises  were  found 
the  frame  of  a  pistol  still  smelling  of  powder,  and  several  car- 
tridges, the  bullets  in  which  were  like  that  with  which  deceased 
was  killed,  even  though  the  cylinder  be  not  found.  People  v. 
Smith,  172  N.  Y.  210. 

Possession  of  Property   Obtained  by  the  Crime. 

In  Com.  V.  Roddy,  184  Pa.  274,  it  was  shown  that  two  weeks 
before  the  murder  and  robbery,  the  deceased  had  in  his  posses- 


202  /  AMERICAN   NOTES. 

sion  a  ten-dollar  Confederate  bill,  and  that  after  the  crime  the 
defendant  Roddy  had  a  like  bill  and  destroyed  it. 

"The  evidence,  together  with  Roddy's  declaration  about  the 
bill  or  note,  how  he  came  by  it,  and  why  he  destroyed  it,  was 
relevant  upon  the  question  of  identity.  It  was  not  conclusive 
upon  the  question,  but  it  related  to  it,  and  with  other  facts  relat- 
ing to  the  same  subject  was  properly  submitted  to  the  jury  as  part 
of  the  chain  of  circumstances  tending  to  identify  the  defendants 
as  the  perpetrators  of  the  crimes  committed." 

Defendant  identified  as  a  burglar  by  a  cut  on  his  liand  (the 
burglar  had  broken  through  a  window),  by  having  been  seen 
that  day  with  another  who  was  killed  at  the  scene  of  the  crime, 
and  by  the  fact  that  he  wore  shirts  taken  from  another  house 
while  the  dead  burglar  wore  shoes  stolen  there.  People  v.  Hogan 
(Mich.),  8i  N.  W.  1096. 

The  State  may  show  that  the  stolen  gun  was  found  in  the  road 
near  where  the  defendant  had  been  when  approached  by  the 
officer.     HoUengshead  v.  State,  67  S.  W,  114. 

To  identify  defendant  as  the  owner  of  a  truck  in  which 
stolen  goods  were  found,  the  State  may  show  that  he  claimed 
clothing  in  it.     State  v.  Yandle,  166  Mo.  589. 

To  identify  a  shirt  as  having  belonged  to  the  defendant,  where 
a  witness  had  sworn  that  it  did  not  belong  to  the  defendant,  it 
may  be  shown  that  she  gave  it  to  a  messenger  who  asked  for  the 
defendant's  shirt.     State  v.  Houser,  28  Mo.  233. 

Insiniments  with  7vliich   Crime  was  Committed. 

The  defendant  was  shown,  in  Bower  v.  State,  5  Mo.  364,  32 
Am.  Dec.  325,  to  have  had  a  cudgel  in  his  possession  which  was 
later  found  near  the  body  of  the  deceased  and  with  which  the 
killing  had  been  done,  and  was  shown  further  to  be  wearing  the 
deceased's  hat  while  his  own  was  near  by  the  body. 

Where  it  has  been  shown  that  certain  tools  were  used  in  a 
burglary,  possession  of  such  tools  is  competent  evidence  to  fasten 
the  crime  upon  the  possessor.  People  v.  Winters,  29  Cal.  658; 
State  V.  Morris,  47  Conn.  179  ;  State  v.  Harrold,  38  Mo.  496. 

To  identify  the  deceased  as  a  burglar  it  was  shown  that  the 
tools  used  came  from  his  place  of  residence.  People  v.  Larned, 
7  N.  Y.  445- 


AMERICAN   NOTES.  202  u 

The  presence  of  burglar's  tools  on  (lefemlanl's  farm  may  be 
shown  wlien  he  was  the  only  occupant  of  such  farm.  People  v. 
Gregory  (Mich.),  90  N.  W.  414. 

The  State  may  introduce  in  evidence,  to  prove  defendant  guilty 
of  arson,  a  flask  with  kerosene  in  it  marked  as  with  bluing,  and 
may  show  that  defendant's  wife  previously  hail  this  flask  with 
bluing  in  it.     Morris  v.  State  (Ala.),  27  So.  336. 

Where  a  knife  was  found  at  the  scene  of  a  burglary,  and  de- 
fendant was  shown  to  have  said  the  next  day  that  he  had  lost 
his  knife,  the  identifi  :ation  of  the  knife  as  his  by  this  and  other 
testimony  was  held  to  be  sufficient.  Bundick  v.  Com.,  97  Va. 
783,  34  S.  E.  454. 

Defendant  was  identified  as  a  burglar  by  a  case-knife,  the  rim 
part  of  which  was  in  his  possession,  but  the  broken  point  was 
wedged  in  the  door-jamb  of  the  burglarized  house.  White  v. 
People,  I  79  111.  356. 

A  bottle  of  powder  found  on  the  road  may  be  introduced  to 
prove  safe-blowing,  when  it  is  shown  that  defendant  had  a  bottle 
at  starting  and  none  at  the  end  of  the  journey.  Edmunds  v. 
State  (Tex.),  6t,  S.  W.  871. 

Where  a  mask  was  found  near  a  window  through  which  a  shot 
had  been  fired,  it  may  be  shown  that  the  defendant  was  shown 
the  mask  without  saying  where  it  had  been  found  and  asked 
where  he  got  it,  and  that  he  replied  that  his  children  had  found 
it  and  that  it  had  once  had  a  black  nose  that  had  been  torn  off. 
Murphy  v.  People,  63  N.  Y.  590. 

Question  for  the  yury. 

The  identification  of  stolen  property  is  for  the  jury,  and  it  is 
error  to  charge  that  a  banknote  stolen  "  was  positively  identi- 
fied."    Hill  V.  State,  17  Wis.  675,  86  Am.  Dec.  736. 

•  Proof  of  Handwriting. 

Opinions  of  Persons  Acquainted  with  the  Handwriting.  "  When 
there  is  a  question  as  to  the  person  by  whom  any  document 
was  written  or  signed,  the  opinion  of  any  person  acquainted 
with  the  handwriting  of  the  supposed  writer,  that  it  was  or  was 
not  written  or  signed  by  him,  is  deemed  to  be  a   relevant  fact. 

"  A  person  is  deemed  to  be  acquainted  with  the  handwriting  of 


202  V  AMERICAN   NOTES. 

another  person  when  he  has  at  any  time  seen  that  person  write, 
or  when  he  has  received  documents  purporting  to  be  written  by 
that  person  in  answer  to  documents  written  by  himself  or  under 
his  auiliority  and  addressed  to  that  i)erson,  or  when,  in  the  ordi- 
nary course  of  business,  documents  purporting  to  be  written  Ijy 
that  person  have  been  habitually  submitted  to  him."  Stephen's 
Dig.  Evid.,  Art.  51. 

A  witness  may  not  testify  as  to  his  knowledge  of  a  signature 
made  by  making  a  mark.     Shinkle  v.  Crock,  17  Pa.  159. 

The  testimony  of  a  person  as  to  his  own  signature  is  of  no 
higher  character  than  the  testimony  of  another  who  is  acquainted 
with  his  handwriting.     Lefferts  v.  State,  49  N.  J.  L.  26. 

Knowledge  of  Hand  Gained  from   Correspondence. 

A  witness  who  has  become  acquainted  with  handwriting 
through  an  official  correspondence  is  competent  to  testify  as  to 
its  genuineness.  Com.  v.  Smith,  6  S.  &  R,  568;  U.  S.  v.  Simp- 
son, 3  P.  &  W.  437- 

One  who  has  corresponded  with  a  person  is  a  competent 
witness  as  to  his  handwriting  (\Vest  v.  State,  2  Zab.  (N.  J.)  212  ; 
Smith  t;.  Walton,  8  Gill  (Md.),  77;  Edelen  v.  Bennett,  8  Gill 
(Md.),  87)  ;  but  not  if  he  has  merely  seen  writings  addressed 
to  others.     Goldsmith  v.  Bane,  3  Hal.  (N.  J.)  87. 

One    Who  Has  Seen  Him    Write. 

Diggin's  Estate,  68  Vt.  19S  ;  Com.  v.  Hall,  164  Mass.  152; 
State  V.  Harvey,  131  Mo.  339  ;  Karr  v.  State,  106  Ala.  i  ;  State 
V.  Farrington,  90  Iowa,  673. 

It  is  enough  that  he  has  seen  him  write  once  to  render  the 
testimony  competent.  Com.  v.  Nefus,  135  Mass.  533  ;  Keith  v. 
Lathrop,  10  Cush.  (Mass.)  453;  Brigham  v.  Peters,  i  Gray 
(Mass.),  139  ;  McNair  v.  Com.,  26  Pa.  St.  388  ;  State  v.  Stair,  87 
Mo.  268  ;  Smith  v.  Walton,  8  Gill  (Md.),  77  ;'Edelon  v.  Bennett, 
8  Gill  (Md.),  87. 

One  who  has  seen  a  person  write  is  a  competent  witness  as  to 
his  handwriting  (West  v.  State,  2  Zab.  (N.  J.)  212;  Cook  v. 
Smith,  30  N.  J.  L.  387)  ;  but  not  when  he  saw  the  person  write 
for  the  purpose  of  thereafter  being  a  witness.  Whitmore  v. 
Corey,  I  Harr.  (N.  J.)  267. 


AMERICAN   NOTES.  202  w 

A  witness  was  held  to  be  competent  who  had  seen  a  person 
write  his  name  twice  thirty-two  years  before  and  once  twenty- 
three  years  before.     Wilson  r.  Van  Leer,  127  Pa.  371. 


Comparison  of  Handwriting  by  Experts  and  the  jfury. 

In  the  various  States  of  the  Union,  there  can  be  said  to  be  no 
general  i-ule  as  to  the  comparison  of  disputed  writings  with 
genuine  ones,  except  the  elementary  doctrine  that  some  compar- 
ison made  be  made  both  by  experts  and  by  the  jury.  There  are 
many  rules  laid  down  as  to  the  conditions  under  which  such  com- 
parison may  be  made  and  as  to  the  writmgs  that  may  be  used  as 
a  standard.  Such  evidence  is,  of  course,  strictly  circumstantial 
in  character. 

.  Sometimes  the  writing  to  be  used  as  the  standard  of  compar- 
ison is  required  to  be  admitted  to  be  genuine,  sometimes  its 
genuineness  is  left  to  the  jury,  and  more  often  its  genuineness  is 
a  preliminary  question  for  the  Court.  Sometimes  only  such 
writings  as  are  already  before  the  jury  may  be  used  as  a  standard, 
but  often  other  writings  are  admitted. 

Many  States  have  settled  the  law  on  this  point  by  statute,  and 
nearly  all  the  remaining  States  have  attempted  to  do  so. 

"  Comparison  of  a  disputed  handwriting  with  any  writing 
proved  to  the  satisfaction  of  the  judge  to  be  genuine  is  permitted 
to  be  made  by  witnesses,  and  such  writings,  and  the  evidence  of 
witnesses  respecting  the  same,  may  be  submitted  to  the  Court 
and  jury  as  evidence  of  the  genuineness  or  otherwise  of  the 
writing  in  dispute.  This  paragraph  applies  to  all  courts  of  judi- 
cature, criminal  or  civil,  and  to  all  persons  having  by  law,  or  by 
consent  of  parties,  authority  to  hear,  receive,  and  examine 
evidence."     Stephen's  Dig.  Evid.,  Art.  52. 

This  rule  is  statutory  in  England. 

Substantially  the  English  doctrine  is  held  in  Koons  v.  State,  36 
Ohio  St.  195  ;  State  v.  Zimmerman,  47  Kan.  242  ;  Com.  v.  Andrews, 
143  Mass.  23. 

Expert  opinion  is  admissible  to  prove  handwriting.  Travis  v. 
Brown,  43  Pa.  9  ;  Fulton  v.  Hood,  34  Pa.  365  ;  Burkholder  v. 
Plank,  69  Pa.  225  ;  Ballentine  v.  White,  77  Pa.  20  ;  West  v.  State, 
2  Zab.  (N.  J.)  212. 


202  X  AMERICAN   NOTES. 

Expert  testiinony  as  to  handwriting  is  admissible,  altliougli  the 
entire  knowledge  of  the  expert  on  tiie  subject  is  derived  from 
comparison  of  the  disputed  writing  with  writing  admitted  to  be 
genuine.  Miles  v.  Loomis,  75  N.  Y.  287  ;  Moody  v.  Rowfll,  17 
Pick.  490;  Slate  v.  Shinborn,  4O  N.  H.  497  ;  Calkins  v.  State,  14 
Ohio  St.  222. 

An  expert  may  give  his  oj^inion  as  to  wliether  a  certain  speci- 
men is  in  a  natural  or  a  simulated  hand.  Com.  v.  Webster, 
5  Cush.  295  ;  Moody  v.  Rovvell,  17  Pick.  490;  Reg.  v.  Shepperd, 
I  Cox  Cr.  Cas.  237. 

In  Com.  V.  Webster,  5  Cush.  295,  evidence  was  introduced  of 
three  anonymous  letters  alleged  to  have  been  written  by  the  ac- 
cused, addressed  to  the  city  marshal,  and  attempting  to  divert 
suspicion  away  from  the  medical  college  where  defendant  was 
professor  of  chemistry.  Expert  testimony  was  allowed  to  show 
that  the  letters  were  not  written  with  a  pen  or  with  a  brush,  and 
yet  that  they  were  in  defendant's  handwriting.  It  was  further 
shown  that  a  small  pine  stick,  about  six  inches  long,  and  as  large 
as  a  goose-quill,  and  having  a  small  wad  of  cotton  which  had 
been  dipped  in  ink  wound  round  one  end,  was  found  in  the  de- 
fendant's laboratory. 

Comparison  of  genuine  writings  with  the  one  questioned  may 
be  made  by  the  jury.     Rockey's  Estate,  155  Pa.  453. 

As  to  the  use  of  other  writings  for  comparison  to  prove  the 
genuineness  of  a  writing  in  dispute,  the  Court  says,  in  State  v. 
Hastings,  53  N.  H.  461  :  "It  is  to  be  received,  and  then  the 
jury  are  to  be  instructed  that  they  are  first  to  find,  upon  all  the 
evidence  bearing  upon  that  point,  the  fact  whether  the  writing 
introduced  for  the  purpose  of  comparison,  or  sought  to  be  used 
for  that  purpose,  is  genuine.  If  they  find  it  is  not  so,  then  they 
are  to  lay  this  writing,  and  all  the  evidence  based  upon  it,  entirely 
out  of  the  case  ;  but  if  they  find  it  genuine,  they  are  to  receive 
the  writmg,  and  all  the  evidence  founded  upon  it,  and  may  then 
institute  comparisons  themselves  between  the  paper  thus  used 
and  the  one  in  dispute,  and  settle  the  final  main  question  whether 
the  signature  in  dispute  is  or  is  not  genuine." 

Qualification  of  a  handwriting  expert.  Wheeler  &  Wilson  Co. 
V.  Buckhout,  60  N.  J.  L.  102. 

Cashiers  and  tellers  of  banks,  whose  business  it  is  to  compare 
handwritings  and  to  detect  forgeries  and  counterfeits,  are  gener- 


AMERICAN   NOTES.  202  y 

ally  held  to  be  qualified  experts  on  the  subject  of  handwriting. 
Lyon  V.  Lyman,  9  Conn.  59  ;  State  v.  Phair,  48  Vt.  366  ;  People 
7).  Hewitt,   2  Parker's  Cr.  Cas.   20  ;  Dubois  v.  Baker,  30  N.  Y. 

355- 

An  expert  is  not  competent  when  the  basis  of  his  testimony  is 
that  he  observed  the  person  write  several  times  for  the  purpose 
of  testifying  later.     Reese  ?'.  Reese,  90  Pa.  89. 

Illegible    Writing. 

Expert  testimony  is  admissible  to  determine  whether  a  certain 
written  word  is  "  J. my  "  or  "  July."  Dresler  v.  Hard,  i2r  N.  Y. 
238. 

Testing  an  Expert's   Opinion. 

A  very  broad  liberality  should  be  allowed  as  to  the  cross-exam- 
ination of  an  expert  to  test  the  value  of  his  opinion.  Other 
genuine  writings,  and  writings  not  genuine,  may  be  submitted  to 
him,  and  his  opinion  asked  as  to  their  authorship,  with  his  reasons 
in  each  case.  Hoag  v.  Wright,  174  N.  Y.  36  ;  Browning  v.  Gos- 
nell,  91  Iowa,  448. 

And  it  is  frequently  allowed  to  test  the  expert  by  presenting  to 
him  other  documents  already  in  the  case.  Harvester  Co.  v. 
Miller,  72  Mich.  272  ;  Thomas  Z'.  State,  103  Ind.  439  ;  Brown  v. 
Chenoweth,  51  Tex.  477. 

But  it  has  been  held  improper  to  test  an  expert  with  fabricated 
signatures  not  already  in  the  case.  Gaunt  v.  Harkness,  53  Kan. 
405  ;  Tyler  v.  Todd,  36  Conn.  222  ;  Andrews  v.  Hayden,  88  Ky. 

455- 

Handwriting  admittedly  genuine  may  be  handed  to  a  witness 
who  has  given  his  opinion  as  to  the  genuineness  of  another  writ- 
ing in  order  to   test  that  opinion.     Bank  v.  Armstrong,  66  Md. 

113- 

On  cross-examination,  a  person's  signature,  written  in  court, 
may  sometimes  be  used,  but  only  in  cross-examination.  Com. 
V.  Allen,  128  Mass.  46;  U.  S.  v.  Mullaney,  32  Fed.  Rep.  370; 
Bradford  v.  People,  22  Colo.  157. 

Weight  of  Expert  Evidence  on  Hand^vriting. 

In  Re  Gordon's  Will,  26  Atl.  277,  the  Court  writes  as  follows  : 
"  Handwriting  is  an  art  concerning  which  correctness  of  opinion  is 


202  a  AMERICAN   NOTES. 

susceptible  of  demonstration,  ami  I  am  fully  convincetl  that  the 
value  of  the  opinion  of  every  handwriting  expert  as  evidence  must 
depend  upon  the  clearness  with  which  the  expert  demonstrates  its 
correctness.  That  demonstration  will  naturally  consist  in  the  indi- 
cations of  similar  characteristics,  or  lack  of  similar  characteristics, 
between  tiie  disputed  writing  and  the  standards,  and  the  value  of 
the  expert's  conclusion  will  largely  depend  upon  the  number  of 
those  characteristics  which  appear  or  are  wanting.  The  appear- 
ance or  lack  of  one  characteristic  may  be  accoimted  to  coinci- 
dence or  accident,  but,  as  the  number  increases,  the  probability  of 
coincidence  or  accident  will  disappear,  until  convictions  will  be- 
come irresistible.  Thus  comparison  is  rated  after  the  fashion  of 
circumstantial  evidence,  depending  for  strength  upon  the  number 
and  prominence  of  the  links  in  the  chain.  Without  such  demon- 
stration the  opinion  of  an  expert  in  handwriting  is  a  low  order  of 
testimony,  for,  as  the  correctness  of  his  opinion  is  susceptible  of 
ocular  demonstration,  and  it  is  a  matter  of  common  observation 
that  an  expert's  conclusion  is  apt  to  be  influenced  by  his  em- 
ployer's interest,  the  absence  of  demonstration  must  be  attributed 
either  to  deficiency  in  the  expert  or  lack  of  merit  in  his  conclu- 
sion. It  follows  that  the  expert  who  can  most  clearly  point  out 
will  be  most  highly  regarded  and  most  successful." 

Evidence  of  handwriting  experts  is  of  low  degree.  Life  Ins. 
Co.  V.  Brown,  30  N.  J.  Eq.  193,  32  N.  J.  Eq.  809. 

The  opinion  of  a  handwriting  expert  is  of  little  weight  unless 
accompanied  by  an  ocular  demonstration.  Gordon's  Case,  50 
N.  J.  Eq.  397,  52  N.  J.  Eq.  317. 

Comparison  of  Hands  by  Lay    Witnesses. 

It  is  not  permissible  for  a  comparison  of  handwriting  to  be 
made  by  a  witness  who  is  not  an  expert,  for  presumably  the  jury 
is  equally  well  qualified  with  him  to  make  the  comparison.  Page 
V.  Homans,  14  Me.  482  ;  Lowe  v.  Dorsett,  125  N.  C.  301  ;  Nil- 
ler  V.  Johnson,  27  Md.  13  ;  Sirother  v.  Lucas,  6  Pet.  766. 

Refreshing   Memory  of  Hajidwriting. 

But  though  a  lay  witness  may  not  express  his  opinion  based 
upon  a  comparison  of  hands,  if  he  is  competent  as  having  seen 


AMERICAN   NOTES.  202  a  * 

the  person  write  whose  signature  is  in  dispute,  or  as  having 
corresponded  with  such  person,  then  he  may,  for  the  purpose 
of  refreshing  his  memory,  examine  in  court  the  specimens 
which  are  the  basis  of  his  knowledge  of  the  handwriting. 
National  Bank  v.  Armstrong,  66  Md.  115;  Thomas  v.  State, 
103  Ind.  419;  McNair  z'.  Com.,  26  Pa.  390;  Smith  v.  Walton, 
8  Gill,  85. 

A  witness  may  refresh  his  memory  of  handwriting  by  inspect- 
ing a  genuine  paper,  but  he  must  testify  independently  of  the 
comparison.     McNair  v.  Com.,  26  Pa.  t^S^. 

Standard  of  Comparison.      Writings  be/ore  the  Jury. 

Many  States,  in  allowing  a  comparison  of  disputed  writings 
to  be  made  by  the  jury  or  by  experts,  restrict  the  comparison  to 
writings  already  before  the  jury  for  other  purposes.  Snider  v. 
Burks,  84  Ala.  56  ;  Miller  v.  Jones,  32  Ark.  343  ;  Tubker  v. 
Hyatt,  144  Ind.  635;  Brobston  v.  Cahill,  64  III.  358;  State 
V.  Batson,  108  La.  479  (in  crim.  cases);  People  v.  Parker,  67 
Mich.  222. 

Writings  Already  before  the  Jury  afid  Admittedly  Genuine. 

Some  States  also  require  that  the  standards  of  comparison  shall 
be  admitted  to  be  genuine,  even  though  already  before  the  jury. 
Rogers  v.  Tyler,  144  111.  652  ;  Geer  v.  M.  L.  &  M.  Co.,  134  Mo. 
85.      (But  see  St.  1895,  P-  -^4)  Rev.  St.  1899,  §  4679.) 

The  jury  may  compare  a  disputed  handwriting  with  one  ad- 
mittedly genuine  already  in  evidence  for  another  purpose.  Wil- 
liams V.  Drexel,  14  Md.  566. 

Standard  May  be  Proved  Genuine. 

But  many  States  allow  writings  to  be  used  by  both  experts  and 
the  jury  for  comparison,  if  such  writings  have  been  satisfactorily 
proved  to  be  genuine,  even  though  they  are  not  already  in  the 
case.  State  v.  Stegman,  62  Kan.  476;  Lyon  v.  Lyman,  9  Conn. 
60;  Maryland,  Pub.  Gen.  L.  1888,  Art.  35,  §6;  Moody  v. 
Rowell,  I  7  Pick.  490  ;  First  Nat.  Bk.  v.  Carson,  48  Neb.  763  ; 
Mutual  B.  L.  Ins.  Co.  v.  Brown,  30  N.  J.  Eq.  201  ;  Travis  v. 
Brown,  43  Pa.  9  ;  Adams  v.  Field,  21  Vt.  264 ;  Carter  v.  Jackson, 
58  N.  H.  157  ;  Bell  v.  Brewster,  44  Ohio  St.  696. 


202  b  *  AMERICAN   NOTES. 

Papers  may  be  admitted  in  some  States  for  the  sole  purpose  of 
comparison.  State  v.  Ihompson,  80  Me.  194,  6  Am.  St.  Re]). 
172,  13  .Xtl.  S92  ;  Com.  V.  Allen,  128  Mass.  46;  caritra.  People 
V.  Parker,  67  Mich.  222  ;  State  v.  Thompson,  132  Mo.  301  ; 
Stokes  V.  U.  S.,  157  U.  S.  187. 

Standard  Admittedly  Genuine. 

Some  States  apparently  allow  writings  not  already  before  the 
jury  to  be  used  as  standards  of  comparison  only  if  they  are  ad- 
mitted to  be  genuine.  Morrison  v.  Porter,  35  Minn.  425  ;  Wilson 
V.  Beauchamp,  50  Miss.  32  ;  Moore  v.  U.  S.,  91  U.  S.  270  ;  State 
V.  Clinton,  67  Mo.  385.     (See  Rev.  Stat.  1899,  §  4679.) 

Letters  admitted  to  be  genuine  may  be  given  to  the  jury  for 
comparison,  but  such  letters  should  be  selected  for  that  purpose 
whose  contents  are  not  likely  to  influence  the  jury  in  any  way. 
Gambrill  v.  Schooley,  95  Md.  260. 

Genuineness  of  the  Standard  of  Comparison. 

Before  a  specimen  may  be  used  for  comparison,  its  genuine- 
ness must  be  beyond  doubt.  "  The  whole  doctrine  of  comparison 
presupposes  the  existence  of  genuine  standards.  Comparison  of 
a  disputed  signature  in  issue  with  disputed  specimens  would  not 
be  comparison  in  any  proper  sense.  When  the  identity  of  any- 
thing is  fully  and  certainly  established,  you  may  compare  other 
things  with  it  that  are  doubtful,  to  ascertain  whether  they  belong 
to  the  same  class  or  not ;  but  when  both  are  doubtful  and  uncer- 
tain, comparison  is  not  only  useless  as  to  any  certain  result,  but 
clearly  dangerous,  and  more  likely  to  bewilder  than  to  instruct  a 
jury.  If  disputed  signatures  were  admissible  for  the  purpose  of 
comparison,  a  collateral  inquiry  would  be  raised  as  to  each  stand- 
ard \  and  the  proof  upon  this  inquiry  would  be  comparison  again, 
which  would  only  lead  to  an  endless  series  of  issues,  each  more 
unsatisfactory  than  the  first,  and  the  case  would  thus  be  filled 
with  issues  aside  from  the  real  question  before  the  jury."  Univ, 
of  Illinois  V.  Spalding,  71  N.  H.  163. 

Writing  offered  as  a  test  for  comparison  must  be  proved  con- 
clusively to  be  genuine.  Baker  v.  Haines,  6  Whart.  284  ;  Depue 
V.  Place,  7  Pa.  428  ;  Travis  v.  Brown,  43  Pa.  9. 


AMERICAN   NOTES.  202  C  * 

Genuineness  of  Standard  a  F reliminary   Question  for  the 
Judge. 

To  avoid  the  introduction  of  collateral  issues  before  the  jury 
and  the  consequent  confusion  of  the  main  issue,  the  question  of 
the  genuineness  of  the  standard  should  not  be  submitted  to  the 
jury  at  all.  It  should  be  treated  as  a  preliminary  question  of  ad- 
missibility to  be  settled  by  the  Court.  In  this  case  of  University 
of  Illinois  V.  Spalding,  71  N.  H.  163,  the  Court  says  :  "The  true 
rule  is  that,  when  a  writing  in  issue  is  claimed  on  the  one  hand 
and  denied  on  the  other  to  be  the  writing  of  a  particular  person, 
any  other  writing  may  be  admitted  in  evidence  for  the  mere  pur- 
pose of  comparison  with  the  writing  in  dispute,  whether  the  latter 
is  susceptible  of  or  supported  by  direct  proof  or  not ;  but,  before 
any  such  writing  shall  be  admissible  for  such  purpose,  its  genuine- 
ness must  be  found  as  a  preliminary  fact  by  the  presiding  judge, 
upon  clear  and  undoubted  evidence." 

This  rule  is  adopted  by  statute  in  some  States  and  by  the  courts 
in  others.  Colorado,  St.  1893,  p.  264  ;  California,  C.  C.  P.  1872, 
§  1944;  Florida,  Rev.  St.  1892,  §  1121;  Kentucky,  Stats. 
1899,  §  1649;  Missouri,  Rev.  St.  1899,  §  4679;  New  York, 
Laws  18S8,  c.  555  ;  Montana,  C.  C.  P.  1895,  §  3235  ;  Wiscon- 
sin, Stats.  1898,  §  4189;  Costello  V.  Crowell,  139  Mass.  590; 
State  V.  Thompson,  80  Me.  194  ;  Travis  v.  Brown,  43  Pa.  9  ; 
Rowell  V.  Fuller,  59  Vt.  692. 

Letterpress  and  Photographic  Copies. 

A  letterpress  copy  of  handwriting  cannot  be  used  for  compari- 
son. Cohen  v.  Teller,  93  Pa.  123.  Nor  may  photographic 
copies  be  so  used.  Vanderslice  v.  Snyder,  4  Pa.  Dist.  424  ; 
Ulmer  v.  Centner,  3  Penny  (Pa.),  453. 

Verification  of  Dates  and  Times. 

Type,  Paper,  and  Ink  —  To  determine  the  genuineness  or 
(iate  of  a  writing,  consideration  may  be  given  to  the  ink,  the 
paper,  and  the  type.  McCorkle  v.  Binns,  5  Binney,  348  ;  Dubois 
V.  Baker,  30  N.  Y.  361. 

Expert  opinion  is  admissible  as  to  the  character  of  the  ink,  the 
paper,  or  the  type  of  a  writing,  to  aid  in  determining  its  authen- 


202d*  AMERICAN   NOTES. 

ticity.     Owen  7'.  Mining  Co.,  9  C.  C.  A.  338,  61    Fed.  Rep.  6; 
Johnson  v.  State.  2  Ind.  654  ;  Jones  v.  Finch,  37  Miss.  4C8. 

Difference  in  Ink. 

To  show  that  two  documents  were  signed  at  different  times,  it 
may  be  shown  that  they  were  written  with  different  inks.  Porell 
7'.  Cavanaugh,  69  N.  H.  364. 

Alterations  and  Erasures. 

Expert  testimony  is  very  generally  admitted  to  determine  the 
time  of  an  erasure  or  an  alteration,  wliether  it  was  before  or  after 
the  execution  of  the  instrument,  or  whether  there  actually  has 
been  any  alteration  at  all.  Ross  v.  Sebastian,  160  111.  604  ;  Fee 
V.  Taylor,  Zt^  Ky.  263  ;  Dubois  v.  Baker,  30  N.  Y.  361  ;  Steven- 
son V.  Gunning,  64  Vt.  601  ;  Ballentine  v.  White,  77  Pa.  26. 

Fixing  Time. 

It  is  admissible  to  prove  the  time  when  a  certain  occurrence, 
foreign  to  the  case,  took  place,  for  the  purpose  of  fixing  by  it  the 
time  when  a  certain  act,  within  the  case,  was  done.  Quintard  v. 
Corcoran,  50  Conn.  38. 

A  letter  cannot  be  introduced  to  establish  the  time  of  its 
receipt.     Com.  v.  Burns,  7  Allen  (Mass.),  540. 

Conversation,  in  order  to  be  admissible  to  fix  a  date,  must  have 
reference  to  something  which  tends  to  establish  it.  Fisk  v.  Cole, 
152  Mass.  335. 

In  order  to  show  whether  the  defendant  had  shaved  his  mous- 
tache before  or  after  the  time  of  a  homicide,  one  witness  was 
allowed  to  say  that  it  was  not  shaved  on  the  day  of  a  certain  alter- 
cation in  a  store,  and  the  date  of  that  altercation  was  proved  by 
another  witness.  Com.  v.  Chance,  174  Mass.  245,  75  Am.  St. 
Rep.  306. 

Where  the  date  of  a  receipt  is  in  issue,  the  time  the  money  was 
actually  received  is  relevant.  Armstrong  v.  Burrows,  6  Watts. 
(Pa.)   266. 

To  fix  the  time  he  met  the  defendants,  witness  may  say  that  it 
was  the  day  before  he  heard  of  the  safe-breaking.  State  v.  Ells- 
wroth,  130  N.  C.  690. 

To  show  that  a  burglary  was  done  before  sunrise,  which  oc- 


AMERICAN   NOTES.  202  e  * 

curred  at  7.04,  it  was  proved  that  the  owner  knew  of  the  burglary 
between  7  and  7.30  a.  m.,  and  that  the  acts  could  not  have 
been  done  in  so  short  a  time.      Taylor  v.  Terr.  (Ariz.),  64  Pac. 

423- 

To  show  that  two  witnesses  are  testifying  in  regard  to  the  same 

place  and  time,  they  may  give  in  evidence  acts  and  statements 
at  that  time  to  identify  it.  "  Any  circumstance  or  act  occurring 
at  that  transaction  and  remembered  by  both  witnesses  would 
show  that  they  were  testifying  to  the  same  occasion  and  would  be 
clearly  competent.  So  we  are  of  opinion  that  the  conversation  of 
the  parties  or  any  declarations  made  at  the  time  are  to  be  re- 
garded as  of  the  nature  of  verbal  acts,  and  admissible  for  the 
purpose  of  identifying  the  occasion  of  which  the  witnesses 
speak.  Statements  used  for  this  limited  purpose  are  admitted 
without  regard  to  the  truth  of  the  facts  stated."  Earle  v.  Earle, 
1 1  Allen  I. 

Evidence  as  to  Handwriting. 

A  recent  case  in  which  the  admissibility  of  evidence  as  to 
handwriting  is  authoritatively  discussed,  both  at  common  law  and 
under  a  modern  statute,  is  People  v.  Molineux,  168  N.  Y.  264,  318. 

There  the  trial  court  admitted  as  standards  of  comparison 
three  classes  of  writings  :  First,  fifty-six  specimens  conceded  by 
the  defendant  to  be  genuine  ;  second,  seven  specimens  written 
by  the  defendant  at  the  request  of  an  expert,  after  the  defendant 
was  suspected  but  before  his  arrest,  for  the  purpose  of  comparison 
by  that  expert ;  and,  third,  certain  letters  written,  as  claimed  on 
the  part  of  the  prosecution,  by  the  defendant  in  the  names  of 
H.  C.  Barnet  and  H.  Cornish. 

The  purpose  of  the  evidence  was  to  show  that  the  defendant 
addressed  a  certain  package,  containing  poison,  to  one  Harry 
Cornish,  which  poison  was  later  taken  by  Mrs.  Katharine  J. 
Adams  with  deadly  effect. 

The  New  York  Statute  provides  that  "  Comparison  of  a  dis- 
puted writing,  with  any  writing  proved  to  the  satisfaction  of  the 
Court  to  be  genuine,  shall  be  permitted  to  be  made  by  witnesses 
in  all  trials  and  proceedings." 

The  defence  contended  that  this  statute  permits  comparison 
only  in  case  the  "  disputed  writing  "  is  itself  in  issue.  But  the 
Court  says  (page  324)  :  "  We  think  it  too  clear  for  extended  argu- 


202  f*  AMERICAN   NOTES. 

mcnt  that  the  'disputcil  writing'  referred  to  by  the  statutes  is  any 
writing  which  one  i)arty  \\\iOX\  x  trial  seeks  to  prove  as  the  genuine 
liandwriting  of  any  person,  and  which  is  not  admitted  to  be  such, 
provided  that  the  writing  is  not  inadmissible  under  other  rules  of 
evidence.  ...  If  a  disputed  handwriting  is  itself  either  a  fact  in 
issue  or  a  fact  relevant  to  the  issue,  it  may  be  proved  by  the 
means  pointed  out  by  the  statutes." 

The  Court  hold  that  all  three  standards  were  admissible,  pro- 
vided their  genuineness  was  established  by  proper  evidence. 
The  first  class  of  writings  was  beyond  question  admissible.  The 
second  class  was  also  admissible.  The  Court  says  :  "  Writings 
created  post  litem  inotavi  are  inadmissible  in  favor  of  a  party 
creating  them.  But  we  have  found  no  case  holding  that  such 
writings  should  be  excluded  when  offered  by  the  adverse  party." 

.'Vs  to  the  letters  written  in  the  names  of  Barnet  and  Cornish, 
which  had  been  introduced  in  evidence  for  other  purposes,  but 
were  also  used  as  a  standard  of  comparison,  it  is  held  that  they 
were  properly  used  as  standards  in  case  they  were  proved  to  the 
satisfaction  of  the  Court  by  evidence  that  was  admissible  under 
the  general  rules  of  the  common  law  for  that  purpose.  In  crim- 
inal cases  such  genuineness  must  be  established  beyond  a  reason- 
able doubt.  Nor  even  then  can  such  standards  be  used  if  they 
are  incompetent  on  some  other  ground,  as  it  was  here  held  the 
Barnet  letters  were. 

See  note  on  this  case  after  Chap.  VII.  "  Poisoning  Cases." 

Belief  of  Witness  as  to  Handwriting. 

If  a  witness  is  competent  to  testify  as  to  handwriting,  his  belief 
is  admissible,  though  it  be  not  a  positive  one.  The  following  is 
taken  from  the  trial  of  Richard  P.  Robinson,  as  reported  in  "  Re- 
markable Trials,"  page  iSi  :  — 

Joseph  Hoxie,  Sr.,  employer  of  the  defendant,  was  examined  by 
Mr.  Morris. 

Q.  Did  you  become  acquainted  with  his  handwriting  from 
seeing  him  write? 

A.    I  have  seen  him  write  frequently. 

Mr.  Morris  then  handed  to  the  witness  a  MS.  book  (being  the 
private  diary  of  Robinson),  and  asked  him  if  that  was  in  the 
handwriting   of  the   prisoner.     The  witness   replied   I   dare  not 


AMERICAN  NOTES.  202^* 

swear  it  is  j  there  is  a  considerable  variety  of  hands  in  the  book 
itself. 

Q.  Can  you  see  any  part  of  the  book  where  you  can  identify 
the  prisoner's  handwriting? 

A.  Some  parts  of  the  book  look  something  like  the  character 
of  his  handwriting  ;  I  have  little  opportunity  of  judging  of  any  part 
of  his  writing  except  from  what  I  have  seen  in  my  books,  and  that 
is  a  plain  business-hand  character  —  unlike  what  I  see  generally 
in  the  book.  On  looking  carefully  over  the  book,  I  cannot  see 
any  writing  that  I  would  venture  to  swear  positively  to  be  his.  I 
would  not  like  to  swear  positively  to  the  handwriting  of  any  man 
in  the  world,  and  if  the  Court  please  I  will  state  my  reasons. 

Q.  Is  it  because  you  would  not  like  to  swear  to  the  hand- 
writing of  any  man  in  the  world  that  you  do  not  choose  to  swear 
to  the  handwriting  in  that  book? 

A.  No,  sir  ;  that  is  only  one  of  my  reasons  ;  there  are  some 
parts  of  the  book  where  there  is  writing  that  I  believe  to  be  the 
prisoner's,  but  I  shall  hesitate  to  swear  to  it  positively. 

Q.    Please,  sir,  point  out  such  parts  as  you  believe  to  be  his. 

A.  If  I  say  even  that  I  believe  the  parts  to  be  his,  I  should 
qualify  my  assertion  by  stating  that  I  was  in  doubt  whether  the 
handwriting  was  his,  or  that  of  another  person  in  my  employ, 
whose  handwriting  is  very  similar  to  what  I  see  throughout  the 
book. 

Q.    What  person  do  you  mean,  sir? 

A.    Mr.  Francis  P.  Robinson. 

Q.    Is  he  in  New  York,  sir? 

A.    He  is  not ;   he  is  in  Europe. 

Q.    When  did  he  go  to  Europe? 

A.    On  February  26  last. 

Q.  Look  at  the  latter  part  of  the  book,  sir,  and  at  the  dates, 
and  see,  after  the  date  of  which  you  speak,  whether  you  find  any 
handwriting  that  you  believe  to  be  the  writing  of  the  prisoner. 

Mr.  Maxwell  objected  to  this  course  of  the  examination  as 
illegal,  and  as  not  being  within  the  ordinary  rule  of  evidence. 

Mr.  Phenix  replied,  and  after  a  brief  technical  discussion  Judge 
Edwards  decided  that  it  was  quite  proper  to  ask  of  the  witness  his 
belief  as  to  the  handwriting  of  the  prisoner,  and  that  his  belief  on 
the  subject  was  admissible  testimony. 


202  //  *  AMERICAN   NOTES. 

The  Trial  of  Richard  P.  Robinson. 

On  June  2,  1836,  Richard  P.  Robinson  was  put  on  trial  in  New 
York  City  for  the  murder  of  Dorcas  Doyen,  alias  Helen  Jewett. 
It  is  a  good  illustration  of  successful  defence  against  strong  in- 
criminating circumstantial  evidence. 

There  was  an  unusual  amount  of  interest  taken  in  the  case,  not 
only  because  of  the  atrocity  of  the  murder,  but  because  of  the 
romantic  and  abandoned  character  of  the  life  of  the  beautiful 
Helen  Jewett. 

The  deceased,  whose  real  name  was  Dorcas  Doyen,  was  born 
of  respectable  parents,  but  went  wrong  morally  at  the  early  age  of 
eleven.  The  lad  with  whom  she  consorted  was,  however,  sent  to 
sea,  and  Dorcas  reformed.  She  was  adopted  into  a  wealthy  fom- 
ily,  was  educated  by  them,  and  grew  to  be  a  beautiful  and  accom- 
plished young  lady.  One  day  she  was  confronted  by  the  sailor 
with  whom  she  had  consorted  in  youth,  and  a  new  intimacy 
sprang  up.  The  affair  was  discovered,  and  the  girl  was  cast  out 
and  disowned  by  the  family  who  had  done  so  much  for  her.  She 
drifted  from  city  to  city,  now  being  on  the  point  of  marrying  a 
wealthy  man  of  good  repute,  who  was  warned  by  an  anonymous 
letter,  and  now  being  in  want  and  distress.  At  last  she  became  a 
resident  of  a  house  of  prostitution  in  New  York.  She  had  orig- 
inally been  decoyed  into  the  business,  under  the  pretence  of  giving 
her  work  as  a  seamstress. 

On  April  10,  1836,  the  girl,  then  known  as  Helen  Jewett,  was 
found  murdered  in  her  bed  in  the  house  of  prostitution. 

The  defendant  was  a  young  man  of  good  family,  who  was  in 
the  employ  of  a  prominent  business  house  in  the  city.  The  young 
man  had  been  living  a  fast  life,  and  was  known  at  the  house  of 
prostitution  in  question,  and  in  the  lower  world  of  New  York  gen- 
erally, as  Frank  Rivers. 

He  had  met  Helen  Jewett,  and  the  two  had  fallen  violently  in 
love.  After  consorting  together  for  some  months,  his  love  cooled. 
Rumors  of  other  sweethearts,  and  even  of  an  approaching  mar- 
riage, reached  Helen's  ears ;  she  became  very  jealous,  and  even 
threatened  to  expose  the  defendant  to  the  world  as  the  profligate 
he  really  was. 

All  this  was  proved  to  show  the  motive  that  the  defendant  had 
to  commit  such  a  crime. 


AMERICAN   NOTES.  202  I  * 

The  further  evidence  to  show  that  the  defendant  was  actually 
the  man  who  killed  Helen  Jewett  was  as  follows  :  The  keeper  of 
the  house  of  prostitution,  one  Rosina  Townsend,  testified  that  she 
saw  the  defendant,  known  to  her  as  Frank  Rivers,  at  her  house  on 
the  night  in  question  ;  that  she  herself  admitted  him  and  recog- 
nized him,  although  he  had  drawn  his  cap  over  his  face  and  had 
drawn  his  cloak  about  his  mouth  and  chin  ;  that  she  had  later, 
about  IIP.  M.,  taken  a  bottle  of  champagne  to  the  room  then 
occupied  by  Helen  Jewett  and  the  defendant,  and  that  she  dis- 
tinctly saw  the  defendant  lying  on  the  bed,  noting  particularly  a 
certain  bald  spot  on  the  back  of  his  head ;  that  before  daylight 
the  next  morning  she  was  roused,  and  found  Helen  Jewett  dead, 
with  her  head  split  open  and  the  bed-clothing  all  about  her  body 
on  fire.  Two  of  the  girls  who  were  inmates  of  the  house  also 
testified  that  the  defendant,  known  to  them  as  Frank  Rivers,  was 
with  Helen  Jewett  that  night.  The  murderer,  in  escaping  from 
the  house,  had  carried  down  Helen's  lamp,  and  got  out  of  the 
back  door,  arousing  no  one. 

One  girl  had  heard  the  sound  of  a  heavy  blow,  followed  by  a 
moan,  and  left  her  room  to  investigate  ;  but  there  was  no  further 
noise,  and  she  desisted. 

The  officers,  upon  investigation,  found  a  cloak  in  the  back  yard, 
a  cloak  that  was  proved  to  have  been  worn  on  that  and  other 
nights  by  the  defendant.  It  was  identified  by  the  material,  the 
color,  the  style,  and  by  a  peculiarity  of  a  cord  with  a  silk  tassel 
that  was  attached  to  the  cloak.  When  the  defendant  was  ar- 
rested, he  was  asked  by  the  officers  if  he  possessed  such  a  cloak, 
and  he  said  not,  and  pointed  to  another  as  the  only  cloak  he  ever 
wore. 

In  a  near-by  yard  was  found  a  hatchet  marked  with  blood,  un- 
doubtedly the  weapon  with  which  the  crime  was  committed.  The 
janitor  of  the  store  at  which  the  defendant  worked  swore  that  he 
had  missed  the  hatchet  belonging  to  that  store  a  day  or  two  before 
the  murder,  and  further  swore  that  this  was  the  hatchet  formerly 
at  the  store. 

In  their  days  of  affection  the  defendant  and  Helen  Jewett  had 
exchanged  miniatures.  The  miniature  of  the  defendant  was 
proved  to  have  been  in  Helen's  possession  two  days  before  the 
murder,  and  the  morning  after  the  murder  it  was  in  the  possession 
of  the  defendant. 


202J 


♦  A.MKklCAX   NOTKS. 


The  defence  was  conducted  unusually  well.  The  character  of 
the  witnesses  for  the  prosecution  was  bitterly  attacked  with  telling 
effect.  Even  the  judge  instructed  the  jury  that  the  testimony  of 
prostitutes  is  very  weak.  I'iie  evidence  of  the  officers  of  the  law 
was  weakened  by  showing  that  they  were  on  friendly  terms  with 
Rosina  Townseml.     Some  inconsistent  statements  were  proved. 

Perhaps  the  most  effective  circumstance  that  was  brought  out 
on  the  part  of  the  defence  was  the  fact  that  two  of  the  frequenters 
of  this  house  of  prostitution  went  by  the  name  of  Frank  Rivers, 
When  Rosina  Townsend  admitted  this  on  the  stand,  the  large 
court-room  was  filled  with  mingled  cheers  and  hisses,  indicating 
the  various  sympathies  of  the  vast  crowd  in  attendance.  Through- 
out the  entire  trial,  in  fact,  a  seething  mob  assailed  the  doors,  often 
numbering  thousands,  and  on  one  day  the  C^ourl  was  forced  to  ad- 
journ, to  obtain  a  great  number  of  constables,  and  to  threaten  the 
crowd  with  the  militia.  Only  after  clearing  the  room  of  specta- 
tors could  the  trial  at  that  time  proceed. 

The  defence  made  a  great  effort  to  discredit  Rosina  Townsend's 
testimony  that  she  saw  the  defendant  in  Helen  Jewett's  bed  on 
the  night  of  the  murder.  She  had  identified  him  positively  by 
the  unusual  bald  spot.  It  was  attempted  to  show  that  the  bald 
spot  in  question  was  not  at  that  time  visible,  and  that  it  did  not 
become  visible  until  the  defendant,  while  in  prison,  and  upon  his 
physician's  advice,  had  his  head  shaved  because  of  falling  hair. 
The  shaving  of  the  head  and  the  presence  of  the  spot  were  com- 
mented upon  by  the  papers,  and  Rosina  Townsend  might  have 
read  of  it.  On  the  other  hand,  however,  the  prosecution  at- 
tempted to  show  that  she  had  mentioned  the  bald  spot  to  several 
persons  before  the  defendant's  head  was  shaved. 

Evidence  was  introduced  to  show  that  there  was  little  light  at 
the  door  when  "  Frank  Rivers"  was  admitted  that  night,  and  that 
therefore  Rosina  Townsend  might  have  been  mistaken  in  her 
identification  of  the  person  admitted.  Rosina  Townsend  and  the 
other  inmates  of  the  house  had  testified  that  "Frank  Rivers" 
arrived  at  the  house  at  nine  or  nine  thirty  in  the  evening.  The 
defence  gave  evidence  of  a  partial,  but  at  the  same  time  very  suc- 
cessful, alibi.  A  respectable  grocer  testified  that  on  that  evening 
the  defendant  had  bought  half  a  dollar's  worth  of  cigars  at  his 
store  and  had  remained  there  smoking  until  a  quarter  after  ten. 
This  store  was  over  a  mile  away  from  the  scene  of  the  murder. 


AMERICAN   NOTES.  202  k  * 

The  grocer  was  not  well  acquainted  with  the  defendant,  but  he 
had  seen  him  a  number  of  times,  and  he  related  definite  circum- 
stances indicating  that  he  was  not  mistaken  in  this  case,  as  that  he 
had  compared  watches  with  the  defendant  when  the  clocks  were 
striking  ten,  and  he  identified  the  defendant's  watch. 

The  defendant's  statement  to  the  officers  that  he  had  no  such 
cloak  as  the  one  found  in  the  yard  was  explained  by  the  fact  that 
the  cloak  in  question,  which  he  actually  had  been  wearing,  did  not 
in  fact  belong  to  him,  but  to  one  Gray,  who  had  given  it  to  the 
defendant  as  security  for  money  loaned. 

It  appeared  that  the  murderer,  in  escaping  the  back  way,  would 
have  been  obliged  to  scale  a  whitewashed  fence,  and  there  was 
evidence  that  when  defendant  was  arrested  his  trousers  were 
marked  with  some  white  substance.  Evidence  on  the  part  of  the 
defendant  indicated  that  these  white  marks  were  paint  marks 
obtained  in  the  newly  painted  basement  of  the  store  where  he 
worked. 

A  silk  handkerchief  bearing  the  name  of  another  frequenter 
of  the  house,  known  there  as  Bill  Easy,  was  found  under  Helen 
Jewett's  pillow  at  the  time  of  the  finding  of  her  body ;  but  the 
prosecution  introduced  Bill  Easy  himself  to  explain  how  the  hand- 
kerchief came  to  be  there. 

The  prosecution  introduced  a  drug  clerk,  who  swore  that  the 
defendant,  known  to  him  then  as  Mr.  Douglas,  attempted  a  few 
days  prior  to  the  murder  to  purchase  arsenic  to  kill  rats.  He 
identified  the  defendant  with  positiveness,  but  upon  a  vigorous 
cross-examination  was  said  to  have  become  "  completely  con- 
founded." 

After  a  charge  to  the  jury  that  was  on  the  whole  favorable  to 
the  defendant,  the  Court  commenting  with  severity  upon  the  char- 
acter of  the  State's  witnesses,  the  jury  returned  a  verdict  of  not 
guilty,  after  an  absence  from  the  court-room  of  ten  minutes. 

Very  naturally,  Robinson  left  New  York,  and  is  said  to  have 
married  and  become  the  father  of  a  large  family. 

This  case  is  fully  reported  in  "  Remarkable  Trials,"  published 
in  1863. 


CHAPTER  V. 

EXCULPATORY  PRESUMPTIONS  AND  CIRCUMSTANTIAL 
EVIDENCE. 

The  law  of  England  recognizes  several  presump- 
tions,/z^rw  et  de  jure,  which  create  entire  or  partial 
exemption  from  criminal  responsibility  ;  for  instance, 
that  an  infant  under  the  age  of  seven  years  cannot 
be  guilty  of  crime,  that  an  infant  above  that  age  and 
under  fourteen  years  shall  be  priin.i  facie  adjudged 
doll  incapax,  and  that,  as  to  certain  offences  con- 
nected with  physical  development,  a  mmor  under 
the  age  of  fourteen  years  shall  be  conclusively  pre- 
sumed to  be  incapable  of  committing  them,  no  evi- 
dence being  admissible  to  the  contrary  {a).  Such 
also  is  the  presumption  that  offences  committed  by 
the  wife  in  the  presence  of  her  husband  shall,  with 
certain  exceptions,  be  considered  to  have  been 
committed  by  his  coercion  (^).  But  the  presump- 
tions which  concern  the  subject  of  this  essay  are  of  a 
different  kind,  consisting  mainly  of  maxims  drawn 
from  well-digested  experience,  grounded  upon  con- 
siderations of  natural  equity,  and  framed  for  the 
purpose  of  securing  a  candid  construction  of  the 
actions  and  motives  of  our  fellow-men.  They  are 
in  truth  but  particular  enunciations  of  strict  justice. 
An  enumeration  of  some  of  the  principal  of  these 
presumptions  will  form  the  subject  of  this  Chapter. 

[a]  I  Hale's  P.  C.  chs.  3  and  58  ;  4  BI.  Comm.  chs.  2  and  15, 
\b)  I  Hale's  P.  C.  c.  7  ;  4  Bl.  Comm.  c.  2. 


204  EXCULPATORY    PRESUMPTIONS. 

1.  In  tlie  investigation  and  estimate  of  crimina- 
tory ex'iclcncc  tlicre  is  an  antecedent  prn/u'i  fade 
presumption  in  favour  of  the  innocence  of  the  party- 
accused,  grounded  in  reason  and  justice,  and 
recognized  in  judicial  practice  ;  which  presumption 
must  prevail  until  it  be  destro)ed  by  such  a  counter- 
vailing amount  of  legal  evidence  of  guilt  as  is 
calculated  to  produce  the  opposite  belief  {c).  It 
must  be  admitted  that  in  the  aggregate,  the  number 
of  convictions  vastly  exceeds  that  of  acquittals,  and 
that  tlie  probability  is  that,  in  a  given  numljer  of 
cases,  far  the  greater  number  of  the  parties  accused 
are  guilty  ;  but  according  to  all  judicial  statistics, 
and  under  every  system,  a  considerable  proportion 
of  the  persons  put  upon  trial  are  legally  innocent. 
In  any  particular  case,  therefore,  the  party  may  not 
be  guilty,  and  it  is  impossible,  without  a  violation  of 
every  principle  of  justice,  to  act  upon  the  contrary 
presumption  of  a  superior  probability  of  guilt.  It 
is  therefore  a  settled  and  inviolable  principle,  that 
till  the  contrary  be  proved,  the  accused  shall  be 
considered  as  legally  innocent,  and  that  his  case 
shall  receive  the  same  dispassionate  and  impartial 
consideration  as  if  he  were  really  so.^ 

2.  It  would  be  foreign  to  the  subject  of  this  essay 
to  discuss  the  considerations  which  affect  the 
credibility  of  evidence  in  general,  such  as  the 
intregrity,  disinterestedness  and  ability  of  the 
witnesses,  the  consistency  of  their  testimony,  its 
conformity  with  experience,  and  its  agreement  with 

{c)  See  the  language  of  Lord  Gillies  in  Rex  v.  APKinley,  33  St.  Tr. 
275  at  col.  506. 


EXCULPATORY    PRESUMPTIONS.  205 

collateral  circumstances, — since  these  considerations 
apply  to  circumstantial  only  in  common  with  all 
other  testimonial  evidence.  It  has  been  profoundly 
observed,  that  of  all  the  various  sources  of  error, 
one  of  the  most  copious  and  fatal  is  an  unreflecting- 
faith  in  human  testimony  (c/)  ;  and  it  is  obvious  that 
all  reasoning  upon  the  relevancy  and  effect  of 
circumstantial  evidence  presupposes  its  absolute 
verity,  and  that  such  evidence  necessarily  partakes 
of  the  infirmities  incidental  to  all  human  testi- 
mony ;  and  experience  has  abundantly  shown  that 
facts  apparently  of  the  most  convincing  character 
have  been  fabricated  and  supported  by  false 
testimony.  Every  consideration,  therefore,  which 
detracts  from  the  credibility  of  evidence  in  the 
abstract,  applies  a  fortiori  to  evidence  which  is 
essentially  indirect  and  inferential.  In  such  cases, 
falsehood  in  the  minutest  particular  more  or  less 
necessarily  throws  discredit  upon  every  part  of  a 
complainant's  statement.  Hence,  since  facts  can 
never  be  mutually  inconsistent,  or,  as  it  has  been 
well  expressed,  "  one  truth  cannot  contradict 
another "  (<?),  circumstantial  evidence  frequently 
affords  the  means  of  evincing  the  falsehood  of 
direct  and  positive  affirmative  testim.ony,  and  even 
of  disproving  the  existence  of  the  corpus  delicti 
itself,  by  manifesting  the  incompatibility  of  that 
testimony  with  surrounding  and  concomitant  circum- 
stances, of  the  reality  of  which  there  is  no  doubt  (/"). 
Sir    Matthew    Hale    mentions    a    very    remarkable 

{d)  I  Stewart's  Collected  Works,  247. 

{e)  Locke  on  the  Hum.  Underst.  b.  iv.  c.  20,  s.  8. 

(/)  Best  on  Presumptions  (1844),  p.  54. 


206        EXCULPATORY  PRESUMPTIONS. 

case,  where  an  elderly  man  was  charged  with 
violatin^^  a  young  girl  of  fourteen  years  of  age,  but 
it  was  proved  beyond  all  doubt,  that  a  physical 
infirmity  rendered  the  perpetration  of  such  a  crime 
utterly  impossible  (g).  The  prosecutrix  of  an 
indictment  ao-ainst  a  man  for  aclministerino-  arsenic 
to  her,  to  procure  abortion,  deposed  that  he  had  sent 
her  a  present  of  tarts  of  which  she  partook,  and  that 
shortly  afterwards  she  was  seized  with  symptoms  of 
poisoning.  Amongst  other  inconsistencies,  she  stated 
that  she  had  felt  a  coppery  taste  in  the  act  of  eating, 
which  it  was  proved  that  arsenic  does  not  possess  ; 
and  from  the  quantity  of  arsenic  in  the  tarts  which 
remained  untouched,  she  could  not  have  taken  above 
two  grains,  while  after  repeated  vomitings,  the  alleged 
matter  subsequently  preserved  contained  nearly 
fifteen  grains,  though  the  matter  first  vomited  con- 
tained only  one  grain.  The  prisoner  was  acquitted, 
and  the  prosecutrix  afterwards  confessed  that  she  had 
preferred  the  charge  from  motives  of  jealousy  (/i). 

3.  Irrespectively  of  and  apart  from  any  positive 
discrepancy  in  the  account  given  by  a  complainant, 
there  is  a  consistency  of  deportment  and  conduct 
grounded  upon  the  invariable  laws  of  our  moral 
nature,  which  is  essentially  characteristic  of  truth  and 
honesty,  and  the  absence  of  which  necessarily  detracts 
from  the  credit  of  such  evidence,  and  therefore  tends 
to  create  a  counter-presumption.  We  reasonably 
expect  to  discover  in  the  demeanozcr  of  a  person  who 

{g)  I  Hale  P.  C.  c.  58. 

{Ji)  Rex  V.  Wha/ley,   York   Spring  Assizes,    1821  ;    Christison   on 
Poisons,  4th  ed.  p.  106. 


EXCULPATORY    PRESUMPTIONS.  207 

has  just  reason  to   complain  of  personal  injury  or 
violated   honour  or  right,   prompt  and   unequivocal 
indications  of  that  sense  of  wrong  and    insecurity 
which  such  acts  of  violence  or  wrong-doing  are  calcu- 
lated instinctively  to  arouse  in  every  human   mind. 
Sir  Matthew  Hale,  in  reference  to  one  of  the  greatest 
of  human   outrages,  says,   "If  she  {i.e.   the  woman 
complaining)  concealed  the  injury  for  any  consider- 
able time  after  she   had  opportunity  to   complain  ; 
if    the    place   where    the  fact  was  supposed   to   be 
committed    were    near   to    inhabitants,   or   common 
recourse  or  passage  of  passengers,  and   she   made 
no  outcry  when  the  fact  was  supposed  to  be  done, 
when  and  where  it  is  probable  she  might  be  heard 
by  others  ;   these  and  the  like  circumstances  carry 
a  strong  presumption  that  her  testimony  is  false  or 
feigned  "  (z).      These   cautionary  considerations   are 
as  cogent  and  as  much  needed  at  the  present  day 
as  when  they  were  written,  and  are  applicable  with 
more  or  less  force  to  accusations  of  every  descrip- 
tion ;    but    they    are    more    especially   weighty   and 
pertinent  in  reference  to  the  particular  crime  referred 
to,  of  which  the  learned  author  has  said,  that  "  it  is 
an   accusation  easily  to   be   made,   and   hard  to  be 
proved,  and  harder    to   be   defended   by  the   party 
accused,  though  never  so  innocent"  {k).    Such  cases, 
he  further  observes,  are  not  uncommon,  and  I.e  has 
related  the  particulars  of  two  cases,  where,  though 
the  charges  were  groundless,  the  parties  with  diffi- 
culty escaped.     **  I    only  mention  these   instances," 
said  that  upright  judge,  '*  that  we  may  be  the  more 
cautious  upon  trials  of  offences  of  this  nature,  wherein 

(/•)  I  Hale,  p.  C.  ch.  58.  {k)  lb. 


208         EXCULPATORY  PRESUMPTIONS. 

the  court  ami  jury  may  with  so  much  case  be  imposed 
upon  ;  without  great  care  and  vigilance,  th(^  heinous- 
ness  of  the  offence  many  times  transporting  the  judge 
and  jury  with  so  much  indignation,  that  they  are 
over-hastily  carried  to  the  conviction  of  the  person 
accused  thereof,  by  the  confident  testimony  some- 
times of  malicious  and  fdlse  witnesses  "  (/).  False 
charges  of  this  kind  have  unhappily  been  too  com- 
mon and  too  successful  in  all  ages.  The  social 
consequences  of  female  dishonour  are  so  deadly,  and 
the  inducements  to  falsehood  and  revenge  so  pecu- 
liar and  so  powerful,  that  there  is  no  class  of  cases 
in  which  it  is  more  important  to  obtain  an  exact 
knowledge  of  the  motives  and  character  of  the 
complainant.  For  these  reasons  great  latitude  of 
cross-examination  is  permitted  in  cases  of  tliis  kind, 
and  it  is  competent  to  the  prisoner  to  give  evidence 
not  only  of  the  prosecutrix's  general  bad  character, 
but  also  of  previous  acts  of  immorality  committed 
with  himself;  with  regard,  however,  to  other  par- 
ticulars of  alleged  misconduct,  such  as  alleged  acts 
of  immorality  with  other  men,  the  general  rule 
holds  good  that  the  prosecutrix's  answers  on  cross- 
examination  cannot  be  contradicted  (;;/). 

4.  Nor  is  the  danger  of  false  accusation  confined 
to  the  particular  class  of  offences  which  has  been 
specially  adverted  to.      Inducements  to  prefer  false 

(/)  I  Hale,  p.  C.  ch.  58. 

{in)  Reg.  V.  Holmes,  L.  R.  i  C.  C.  R.  334  ;  Reg.  v.  Riley,  18  O.  B.  D. 
481.  See  Taylor's  Law  of  Evidence,  9th  ed.  pp.  257,  950,  951  ; 
Roscoe's  Digest  of  Criminal  Evidence,  12th  ed.  pp.  775-6:  nnd 
Archbold's  Criminal  Pleading,  22nd  ed.  p.  867,  where  the  subject  is 
fully  discussed  and  the  cases  collected. 


EXCULPATORY    PRESUMPTIONS.  20g 

charges  may  operate  with   greater   or   lesser  force 
with    regard    to    accusations  of   every    kind.      Two 
women  were  capitally  convicted  of  robbing  a  young 
girl   named  Canning,  and  afterwards  confining  her 
under  circumstances  of  great  cruelty  for  twenty-nine 
days  without  sustenance,  except  a  quartern  loaf  and 
a   pitcher   of   water.       Public   odium    was    intensely 
excited  against  the  prisoners,  and  they  very  narrowly 
escaped  execution,  and  yet  it  was  clearly  ascertained 
that  the  charge  was  a  fabrication  in  order  to  conceal 
the    prosecutrix's   misconduct  during   the  period  of 
her  absence  from   her  master's  house  (//).      Canning 
was  afterwards  convicted  of  perjury,  and  sentenced 
to  be  transported  ;   and  upon   her  trial  thirty-eight 
witnesses,  most  of  them  unconnected  with  each  other, 
spoke  to  the  identity  of  one  of  her  unfortunate  victims, 
and  proved  a  circumstantial  alibi  {d).      Nine  persons 
were  convicted  on  a  charge  of  conspiring  to  carry 
off  from  the  house  of  her  guardian,  a  young  lady  of 
seventeen  years   of  age,   in    order    to    procure   her 
clandestine  marriage  with  a  young  man  of  low  con- 
dition for  whom  she  had  formed  an  attachment,  and 
with  whom  she  had  indulged  in  vulrar  familiarities. 
She  gave  her  testimony  in  a  manner  apparently  so 
artless  and  ingenuous  that  she  greatly  prepossessed 
the  judge,  and  so  favourably  impressed  the  jury  that 
they  stopped  the  prosecutor's  counsel  when  about  to 
reply,  and  returned  a  verdict  of  gui.ty  (/).     Her  story 

{ti)  Rex  V.  Squires  and  IVe/ls,  19  St.  Tr.  col.  261-275. 

{0)  Rex  V.  Canning,  19  St.  Tr.  283  at  col.  667  ;  and  see  Lawrence's 
Life  of  Fielding,  320. 

{f)  Rex  V.  Boiudifch  and  others,  Dorchester  Summer  Assizes,  1818, 
coram  Park,  J.,  Shorthand  Rep. 

C.E.  P 


210        EXCULPATORY  PRESUMPTIONS. 

was  nevertheless  discovered  to  be  a  fabrication,  for  the 
purpose  of  extricating  herself  from  the  shame  of  her 
levity  and  misconduct,  and  she  as  well  as  a  witness 
who  had  corroborated  her  story  were  afterwards 
convicted  of  perjury  (<7).  Miscreants,  and  among 
them  even  the  inferior  ministers  of  the  law,  have 
concocted  and  procured  the  commission  of  robbery 
and  other  crimes  for  the  purpose  of  obtaining 
the  pecuniary  rewards  formerly  given  by  Act  of 
Parliament  for  the  apprehension  and  conviction 
of  offenders  (r). 

It  is  frequently  therefore  of  the  highest  import- 
ance, to  investigate  the  motives  of  the  complainant, 
and  to  ascertain  whether  they  are  such  as  may 
have  led  to  the  institution  of  a  false  charge.  The 
just  course  of  inquiry  in  such  circumstances  was 
thus  laid  down  by  Mr.  Justice  Coltman.  "The 
jury,"  he  said,  "  had  nothing  to  do  with  the 
prosecutor's  motives  except  so  far  as,  if  it  should 
appear  that  there  was  any  motive  for  the  prosecu- 
tion of  an  unworthy  character  made  out,  it  would 
then  be  their  duty  to  watch  such  a  case  much  more 
narrowly  than  one  in  which  no  such  motive  appeared. 
Even  in  that  case,  however,  if  the  evidence  satisfied 
them  of  the  truth  of  the  charge,  they  had  no  right 
to  look  at  the  motives  that  had  induced  the  prose - 


{q)  Rex  V.  Whitby,  and  Rex  v.  Glen7i,  K.  B.  Guildhall,  October, 
1820. 

(r)  Rex  V,  AP Daniel  and  others,  Foster's  Rep.  121  ;  Rex  v.  Vangha7t 
and  others.  Sessions  Papers,  1816;  Reg.v.Delahnnt,  Dublin,  1842; 
cited  in  Best's  Principles  of  Evidence,  2nd  ed.  1855,  §451,  p.  533, 
note  [z). 


EXCULPATORY    PRESUMPTIONS.  211 

cutor  to  prefer  it,  but  were  bound  to  say  that  the 
accused  person  was  guilty  "  [s). 

5.  A  presumption  of  innocence  may  be  created  by 
the  language,  conduct,  and  demeanour  of  the  party 
charged  with  crime  :  and  it  is  upon  this  principle 
that  the  ingenuous  and  satisfactory  explanation  of 
circumstances  of  suspicion  always  operates  in  favour 
of  the  accused.  Mr.  Justice  Erie  said  he  thought  it 
was  extremely  important,  as  much  for  the  protection 
of  innocence  as  for  the  discovery  of  guilt,  that  the 
accused  should  have  an  opportunity  of  making  a 
statement  (/),  and  the  Lord  Justice  Clerk,  Lord 
Mackenzie,  in  a  Scotch  case,  said,  that  the  declara- 
tion of  a  prisoner,  if  fairly  given,  and  founded  in 
truth,  often  had  a  very  favourable  effect  (//).  It  is 
evident,  however,  that  this  kind  of  presumption 
must  be  attended  with  much  uncertainty,  and 
in    its    application    requires    the    exercise   of   great 

{s)  Reg.  V.  Coyie,  C.  C.  C.  October  Session,  185 1.  A  curious 
illustration  of  this  remark  occurred  at  Chester  Autumn  Assize*,  1886. 
A  man  was  tried  for  an  offence  under  sect.  5  of  the  Cr  minal  Law 
Amendment  Act,  1885.  The  principal  witness  against  him  was  the 
mother  of  the  girl,  who  had  caught  him  in  the  act,  but  the  transaction 
had  occurred  more  than  a  year  before.  The  judge  inquired  why  it  was 
that  the  charge  was  not  made  at  the  proper  time.  "  I  had  pity  upon 
him,"  was  the  answer,  "because  he  was  an  orphan."  The  orphan  was 
forty  years  of  age,  and  as  he  had  not  ceased  to  be  an  orphan,  further 
inquiry  was  made,  and  it  turned  out  that  the  prisoner  had  gone  lately 
to  the  mother's  house  and  enjoyed  her  hospitality  over  a  cup  of  tea.  He 
accidentally  cracked  a  teapot,  for  which  she  wanted  a  shilling  from 
him,  which  he  refused  to  pay,  whereupon  the  charge  was  made.  It  was 
perfectly  true  and  the  prisoner  admitted  it,  but  that  cracked  teapot  and 
his  reluctance  to  pay  a  shilling  cost  him  some  months  of  imprisonment. 
Reg.  V.  Joseph  Roberts,  27  October,  1886,  coram  Wills,  J. 

(/)  Reg.  V.  Baldry,  21  L.  J.  M.  C.  130. 

(«)  Rex  V.   Wishart,  Syme's  Justiciary  Rep.  App.,  at  p.  22. 

P    2 


212  EXCULPATORY    PRESUMPTIONS. 

circumspection.  The  deportment  of  innocence  may 
be  siniiilated,  and  from  the  anomaHes  of  human 
nature,  it  may  be  difficult  if  not  impracticable  in  some 
cases  to  determine  what  is  the  natural  and  suitable 
conduct  to  be  expected  from  a  person  inHuenced  by 
the  pressure  of  an  accumulation  of  circumstances,  at 
once  threatening  and  fallacious.  It  is  certain  that 
innocent  persons  have  drawn  upon  themselves  the 
punishment  of  crime  by  conduct  apparently  consistent 
only  with  guilt,  but  which  has  been  resorted  to 
as  likely  to  divert  or  repel  unjust  suspicion ;  of 
which  an  instructive  case  is  mentioned  by  Lord 
Coke(;r).  "  In  the  county  of  Warwick,"  says  he, 
" there  were  two  brethren;  the  one  having  issue  a 
daughter,  and  being  seized  of  lands  in  fee,  devised 
the  o-overnment  of  his  daugrhter  and  his  lands  until 
she  came  to  her  age  of  sixteen  years,  to  his  brother, 
and  died.  The  uncle  brought  up  his  niece  very 
well  both  at  her  book  and  needle,  etc.,  and  she  was 
about  eight  or  nine  years  of  age ;  her  uncle  for  some 
offence  correcting  her,  she  was  heard  to  say,  *  Oh  ! 
eood  uncle,  kill  me  not !  '  After  which  time  the 
child,  after  much  inquiry,  could  not  be  heard  of, 
whereupon  the  uncle,  being  suspected  of  the  murder 
of  her,  the  rather  for  that  he  was  her  next  heir,  was 
upon  examination,  anno  8  Jac.  Regis,  committed  to  the 
gaol  for  suspicion  of  murder;  and  was  admonished  by 
the  justices  of  assize  to  find  out  the  child,  and  there- 
upon bailed  him  until  the  next  assizes.  Against  which 
time,  for  that  he  could  not  find  her,  and  fearing  what 
would  fall  out  against  him,  took  another  child  as 
like  unto  her  both  in  person  and  years  as  he  could 

{x)  Coke's  3rd  Inst.,  c.  104,  p.  232. 


EXCULPATORY    PRESUMPTIONS.  2I3 

find,  and  apparelled  her  like  unto  the  true  child, 
and  brought  her  to  the  next  assizes  ;  but  upon  view 
and  examination  she  was  found  not  to  be  the  true 
child  ;  and  upon  these  presumptions  he  was  indicted 
and  found  guilty,  had  judgment,  and  was  hanged. 
But  the  truth  of  the  case  was,  that  the  child,  being 
beaten  ov^ernight,  the  next  morning,  when  she  should 
go  to  school,  ran  away  into  the  next  county  ;  and 
being  well  educated  was  received  and  entertained  of 
a  stranger  ;  and  when  she  was  sixteen  years  old,  at 
which  time  she  should  come  to  her  land,  she  came 
to  demand  it,  and  was  directly  proved  to  be  the 
true  child.  Which  case,"  the  learned  author  adds, 
"  we  have  reported  for  a  double  caveat ;  first  to 
judges,  that  they  in  case  of  life  judge  not  too  hastily 
upon  bare  presumption,  and  secondly  to  the  innocent 
and  true  man,  that  he  never  seek  to  excuse  himself 
by  false  or  undue  means,  lest  thereby  he,  offending 
God  (the  author  of  truth),  overthrow  himself  as  the 
uncle  did."  From  the  foreofoinsf  considerations  it 
follows  that  our  judgments  in  regard  to  the  conduct 
of  parties  under  accusation  for  crime  must  occasion- 
ally be  modified  by  allowances  for  human  weakness 
and  inconsistency,  which  can  in  no  degree  be 
admitted  as  qualifying  the  obligation  of  entire 
truthfulness  and  consistency  justly  exacted  from 
those  who  voluntarily  become  the  accusers  of  others. 

6.  Since  an  action  without  a  motive  would  be  an 
effect  without  a  cause,  a  presumption  is  consequently 
created  in  favour  of  innocence  from  the  absence  of 
all  apparent  inducement  to  the  commission  of  the 
imputed    oftence.      But  the  investigation  of  human 


214  EXCULPATORY    PRESUMPTIONS. 

motives  is  often  a  matter  of  great  difficulty,  from 
their  latency  or  remoteness  ;  and  experience  shows 
that  aggravated  crimes  are  sometimes  committed 
from  very  slight  causes,  and  occasionally  even 
without  any  apparent  or  discoverable  motive.  This 
particular  presumption  would  therefore  seem  to  be 
applicable  only  to  cases  where  the  guilt  of  the 
individual  is  involved  in  doubt;  and  in  such  cases 
juries  are  apt  to  attach  considerable  importance  to 
motive.  Where  a  nurse  was  charged  with  the 
murder  of  a  woman  by  poison,  it  was  shown  that 
the  deceased  and  two  other  members  of  the  family 
had  died  of  strychnine  and  morphia  while  under  the 
prisoner's  care  :  that  the  prisoner  had  access  to  both 
these  poisons,  and  that  the  attacks  and  death 
followed  on  the  patient  receiving  food  or  medicine 
from  her.  No  motive  could  be  suggested,  and  the 
jury  found  that  the  prisoner  had  administered 
morphia  to  the  deceased,  but  with  what  intent  there 
was  no  evidence  to  show.  She  was  acquitted  ( y). 
The  question  of  intent  is,  however,  seldom  raised 
in  so  direct  a  form,  and  it  is  still  less  often  that 
such  a  verdict  is  likely  to  be  returned.  It  would 
look  as  if  the  jury  in  the  case  mentioned  had 
confounded  intention  with  motive.  As  a  general 
rule,  if  a  person  commits  an  act  wrong  in  itself,  and 
of  which  the  mischievous  consequences  are  perfectly 
well  known,  it  is  a  safe  conclusion  and  one  generally 

(y)  Reg.  V.  Wilmot,  Leeds  Winter  Assizes,  1881,  coram  Manisty,  J. 
See  Times,  Feb.  loth  and  nth;  cf.  the  charge  of  Abbott,  J.,  in  Rex 
V.  Dott?ian,  Frazer's  Shorthand  Rep.,  p.  130,  referred  to  at  length, 
pp.  331-336,  i?if?-a.  As  to  the  distinction  between  motive  and  intention, 
see  p.  45,  supra. 


EXCULPATORY  PRESUMPTIONS.         215 

adopted  by  reasonable  people  that  he  intended  that 
those  consequences  should  follow.  If  so,  it  is 
immaterial  what  the  motive  was,  or  whether  there 
was  any  motive  at  all.  It  is  conceivable  that  a  man 
mic^ht  kill  another  deliberately  and  intentionally 
because  he  thought  it  better  on  the  whole,  either  for 
the  victim  himself  or  for  society  at  large,  that  he 
should  die  rather  than  live.  Such  a  motive  would 
not  save  the  slayer  from  conviction,  nor  would 
necessarily  the  mere  absence  of  an  assignable  motive. 

7.  An  accused  person's  motives,  even  where 
they  are  unquestionably  of  a  criminal  character,  may 
nevertheless  be  susceptible  of  different  interpreta- 
tions, and  indicative  of  very  different  degrees  of 
moral  and  legal  turpitude.  Concealment  of  the  death 
of  an  illegitimate  child  and  the  clandestine  disposal 
of  its  body,  for  instance,  may  be  accounted  for  either 
by  a  purpose  to  suppress  evidence  of  a  murder, 
or  merely  by  the  desire  of  preserving  the  reputa- 
tion of  female  chastity.  Where  a  woman  was 
indicted  jointly  with  her  husband  for  receiving  stolen 
property  knowing  it  to  have  been  stolen,  and  it 
appeared  that  she  had  dealt  with  it  and  ultimately 
destroyed  it,  it  was  held  to  be  a  question  for  the 
jury  whether  she  had  so  received  and  dealt  with  it 
to  aid  him  in  turning  it  to  profit,  or  merely  to  con- 
ceal his  guilt  or  screen  him  from  the  consequences  (z). 
So  where  a  wife  attempted  to  break  up  coining 
implements  at  the  time  of  her  husband's  apprehen- 
sion, it  was  held  that  if  done  with  the  object  of 
screening    him,   it    was    no    evidence    of    a    guilty 

(s)  Reg.  V.  M'^Clarens,  3  Cox,  C.  C.  425  ;  and  Reg:  v.  Brook,  6  tb.  148. 


2l6  EXCULPATORY    PRESUMPTIONS. 

possession  by  her  (a).  And  wlicre  a  man  and  lils 
wife  were  found  guilty  of  wounding  a  person  with 
intent  to  disfigure  him  and  to  do  him  grievous 
bodily  harm  ;  but  the  jury  found  that  the  wife 
acted  under  the  coercion  of  the  husband  and  did 
not  personally  inflict  any  violence  on  the  prosecutor  ; 
it  was  held  by  the  Court  for  the  consideration  of 
Crown  Cases  Reserved  that  the  conviction  against 
the  wife  could  not  be  supported  (/;).  In  all  such 
cases,  every  sound  principle  of  interpretation  and 
judgment  requires,  that  in  the  absence  of  contrary 
proof,  the  act  shall  be  referred  to  the  operation  of 
the  least  guilty  motive  ;  conformably  to  the  maxim, 
prcesumptio  jiLclicatur potentior  qiicc  est  ben^nior{c). 
Of  this  evident  principle  of  justice  the  statute  21 
Jac.  I.  c.  27  (now  happily  expunged  from  our  code), 
which  made  the  concealment  of  the  death  of  an 
illegitimate  child  by  its  mother,  a  conclusive  pre- 
sumption of  murder,  unless  she  could  make  proof 
by  one  witness  at  least  that  the  child  was  born  dead, 
was  a  flagrant  violation.  It  is  on  this  principle  that, 
when  a  special  intent  is  made  by  statute  an  essential 
ingredient  of  any  offence,  as  in  the  cases  of  assault 
with  intent  to  murder  or  to  rob,  or  to  commit  a 
felony,  or  to  prevent  lawful  apprehension  or  detainer, 
such  special  intent  must  be  proved  by  direct  evidence 
or  by  circumstances  which  necessarily  or  reasonably 
lead  to  the  inference  of  such  intention.  Thus  a 
charge  of  the  statutable  offence  of  throwing  upon  or 

{a)  Reg.  V.  Boober,  4  Cox,  C  C.  272. 

{p)  Reg.  V.  Sviith  and  wife.,  27  L.  J.  M.  C.  204. 

{c)  Menochius,  De  Prjesumplionibus,  lib.  v.  pr.  29 — another  way  of 
saying  that  guilt  must  be  proved.  Maxims,  if  unimpeachable,  are 
seldom  much  more  than  truisms. 


EXCULPATORY    PRESUMPTIONS.  2I7 

Otherwise  applying  to  any  person  any  corrosive  fluid 
or  other  destructive  matter,  with  intent  to  burn, 
maim,  or  do  some  bodily  harm,  is  not  sustained  by 
proof  of  throwing-  a  corrosive  fluid  for  the  purpose 
of  burning  the  clothes  {d).  And  on  the  trial  of  a 
man  for  throwing  a  stone  at  a  railway  carriage  with 
intent  to  endanger  the  safety  of  the  passengers,  where 
it  appeared  that  the  prisoner  threw  a  stone  just  as 
the  train  was  setting  off,  at  a  passenger  against 
whom  he  had  been  much  excited,  Mr,  Justice  Erie  told 
the  jury  that  they  must  be  satisfied  that  the  intent 
was  to  inflict  some  grievous  bodily  harm,  and  such 
as  would  sustain  an  indictment  for  assaulting  or 
wounding  a  person  with  intent  to  do  grievous  bodily 
harm  ,  but  that,  as  that  is  a  question  of  degree, 
which  it  is  impossible  to  define  further  than  In  those 
terms,  the  jury  must  decide  upon  the  facts,  whether 
there  had  been  such  an  intent  {e). 

8.  Th^  prima  facie  "proisunx^iiow  in  favour  of  inno- 
cence from  the  absence  of  all  apparent  motive,  is 
greatly  strengthened  where  all  inducement  to  the 
commission  of  the  imputed  crime  is  opposed  by 
strong  counteracting  m.otives  ;  as  where  a  party 
indicted  for  arson  with  intent  to  defraud  an  insurance 
office  had  furniture  on  the  premises  worth  more  than 
the  amount  of  his  insurance  (_/),  or  where  a  party 
accused  of  murder  had  a  direct  interest  in  the  con- 
tinuance of  the  life  of  the  party  supposed  to  have  been 

[d)  Reg.    V.    Coppard,    Kingston    Winter    Assizes,     1855,     co7-am 
Crompton,  J.  ;  and  see  Rix  v.  Woodburjje  an  I  Coke,  p.  54,  supra, 

(e)  Reg.  V.  Rooke,  i  F.  and  F.  107. 

(/)  Rex  \.  Bingham,  Horsham  Spring  Assizes,  181 1. 


2l8  EXCULPATORY    PRESUMPTIONS. 

murdered  ("^  ).  A  forliori  would  this  presumption 
seem  to  appl)'  wlicrc  the  hte  of  the  suspecteel  part\'  lias 
been  endangered,  as  die  consequence  of  the  sui)[)Osed 
criminal  act;  as  where  a  party  charged  with  murder 
by  poisoning  had  herself  partaken  of  the  poisoned 
food  (//)  :  but  this  circumstance,  of  apparently  favour- 
able presumption,  may  have  been  resorted  to  as  an  arti- 
fice to  avert  suspicion,  especially  if  the  quantity  taken 
has  not  been  sufficient  seriously  to  endanger  life  (/'). 

9.  Since  falsehood,  concealment,  flight,  and  other 
like  acts,  are  generally  regarded  as  indications  of 
conscious  guilt,  it  naturally  follows  that  the  absence 
of  these  marks  of  mental  emotion,  and  still  more  a 
voluntary  surrender  to  justice,  when  the  party  had 
the  opportunity  of  concealment  or  flight  {k\  must  be 
considered  as  leading  to  the  opposite  presumption  ; 
and  these  considerations  are  frequently  urged  with 
just  effect,  as  indicative  of  innocence  ;  but  the  force 
of  the  latter  circumstance  may  be  weakened  by  the 
consideration  that  the  party  has  been  the  object 
of  diligent  pursuit  (/),  or  that,  as  said  by  Lord 
Cam[)bell,  though  he  may  have  abstained  from  flight 
from  a  sense  of  innocence,  he  may  have  done  so 
from  thinking  that,  from  the  course  he  had  taken, 
nothing  would  be  discovered  against  him  (/;/).      It 

{g)  Rex  V.  Poivning^  pp.  240-242,  i/ifra. 

[h)  Res^.y.  Haivkijts,  Stafford  Summer  Assizes,  1839. 

(/)  Rex  V.  Wescoinbe,  and  Rex  v.  Nairn  a/id  Ogilby  (19  St.  Tr. 
col.  1284),  p.  122,  supra :  and  see  Rex  v.  Fe7t7iing,  p.  295,  injra. 

[k)  Menochius,  De  Praesumptionibus,  lib.  v.  pr.  48. 

(/)  Rex  V.  Glen,  Syme's  Justiciary  Report,  at  p.  277. 

{ni)  Reg.  v.  Palmer,  Shorthand  Report,  at  p.  310.  See  p.  344,  infra. 
It  must  also  be  borne  in  mind  that  at  the  present  day,  with  extradition 


EXCULPATORY    PRESUMPTIONS.  219 

must  be  also  remembered,  that  flight  and  other 
similar  indications  of  fear  may  be  referable,  not  to 
the  precise  offence  charged  but  to  other  circum- 
stances, as  to  disordered  affairs  (;/),  or  to  guilt  of 
another  and  less  penal  character  than  that  involved 
in  the  particular  charge  (o).  This  view  was  urged, 
but  without  success,  in  the  case  above  mentioned  of 
the  Goat  Fell  murder,  where  the  prisoner's  flight 
and  the  concealment  of  the  body  were  undoubtedly 
grave  inculpatory  presumptions  {J>). 

10.  As  is  the  case  with  other  presumptions,  so 
the  inference  of  guilt  from  the  recent  possession  of 
stolen  property  may  be  rebutted  by  circumstances 
which  create  a  counter-presumption  :  as  where  the 
property  is  found  in  the  prisoner's  possession  under 
circumstances  which  render  it  more  probable  that 
some  other  person  was  the  thief.  Therefore, 
where,  on  the  trial  of  a  mother  and  her  two  sons  for 
sheepstealing,  it  was  proved  that  the  carcass  of  a 
sheep  was  found  in  the  house  of  the  mother,  it  was 
considered  that  the  presumption  arising  from  the 
possession  of  the  stolen  property  immediately  after 
the  theft  was  rebutted  so  far  as  respected  her,  by 
the  circumstance  that  ?7ia/e  footsteps  only  were  found 
near    the    spot    from    which    the    sheep    had    been 

treaties  covering  almost  the  whole  of  the  civilized  world,  permanent 
escape  is  extremely  difficult. 

(«)  J^ex  V.  Crossfield,  26  St.  T.  at  col.  217. 

(<?)  Rex  V.  Schojield,  31  St.  Tr.  at  col.  1061  ;  and  see  the  language 
of  Tindal,  L.  C.  J.,  in  Rex  v.  Frost,  Gurney's  Rep.  766  ;  and  of  the 
Lord  Justice  Clerk  Boyle,  in  Rex  v.  Hunter  and  others^  Court  of 
Justiciary,  Jan.  1838,  Shorthand  Report,  368. 

{J))  R.  V.  Laurie,  supra,  p.  119. 


220  EXCULPATORY    PRESUMPTIONS. 

Stolen  [C]).  A  woman  was  tried  for  the  larceny 
of  five  saws  which  had  been  stolen  from  the 
workshop  of  a  hat-block  turner  during  the  night. 
There  was  a  hole  in  the  building  large  enough  for  a 
person  to  have  crept  through  it.  On  the  following  day 
she  pledged  two  of  the  saws  with  a  pawnbroker  in 
the  neighbourhood.  On  the  following  night,  the 
house  of  the  prosecutor  was  broken  open  and  a 
number  of  articles  stolen.  No  communication  existed 
between  the  house  and  the  workshop.  Two  days 
afterwards  the  prisoner  was  taken  into  custody  in 
the  house  of  a  man  who  was  himself  charged  with 
having  committed  the  burglary.  Mr.  Baron  Gurney 
said  it  was  improbable  that  the  female  should  have 
taken  these  saws  (r),  but  that  it  was  extremely 
probable  that  she  should  have  been  employed  by 
another  person  to  pawn  them,  that  it  was  hardly  a 
case  in  which  the  general  rule  could  apply,  and  that 
it  would  be  safer  to  acquit  the  prisoner  (s).  Circum- 
stances of  conduct  also  may  repel  this  prima  facie 
presumption  ;  as  where  the  prisoner  a  few  days 
after  the  robbery  of  a  large  quantity  of  plate  in 
London,  sold,  to  a  dealer  in  gold  and  silver,  some 
silver  articles  marked  with  the  prosecutor's  crest 
partially  obliterated,  which  had  formed  part  of  the 
stolen  property.  Mr.  Baron  Bramwell  said  it  was  a 
circumstance  in  the  prisoner's  favour  that  he  had 
disposed  of  the  silver  at  a  place  where  he  had  been 

{q)Rex\,  Arundel  aftd  others,  i  Lewin,  C.  C.  115. 

(r)  Women  commit  burglary  and  housebreaking  but  seldom,  though 
cases  of  both  offences  committed  by  women  are  probably  within  the 
experience  of  every  judge  who  has  been  for  some  years  on  the 
bench. 

{s)  Rex  V.  Collier f  4  Jurist,  703. 


EXCULPATORY    PRESUMPTIONS.  221 

known  for  several  years  and  had  been  in  the  habit 
of  bringing  gold  and  silver  for  sale,  and  did  not 
appear  to  have  made  any  attempt  at  secrecy.  The 
prisoner  was  acquitted  [t). 

T  T.  Circumstances  of  apparently  the  most  unfavour- 
able presumption  may  be  susceptible  of  an  explana- 
tion consistent  with  the  prisoner's  innocence,  and 
really  be  irrelevant  to  the  particular  inference  sought 
to  be  derived  from  them  {71)  ;  or  they  may  be 
opposed  by  circumstances  which  weaken  or  neutralize, 
or  even  repel,  the  imputed  presumption,  and  induce  a 
stronger  counter-presumption  (?/).  In  all  such  cases, 
justice  demands  that  dispassionate  and  candid  con- 
sideration be  given  to  the  alleged  circumstances  of 
explanation  or  rebuttal.  On  the  trial  of  a  shoe- 
maker for  the  murder  of  an  aged  female,  it  appeared 
that  his  leathern  apron  had  several  circular  marks 
made  by  paring  away  superficial  pieces,  which  it 
was  supposed  had  been  removed  as  containing  spots 
of  blood,  but  it  was  satisfactorily  proved  that  the 
prisoner  had  cut  them  ofif  for  plasters  for  a  neigh- 
bour [x).  A  policeman  on  his  examination  before 
the  Coroner,  where  the  question  was,  whether  a 
young  woman  had  been  murdered  or  had  committed 
suicide,  swore  that  a  piece  of  rope  found  in  the 
prisoner's  box  appeared  to  have  been  cut  from  the 
same  piece  that  was  round  the  neck  of  the  deceased ; 
but  on  the  trial  he  acknowledged  that  he  had  been 

(/)  jRe^g-.  V.  Benjamz'n,  C.  C.  C,  June,  .'858. 

(u)  Rex  V.  Thornton^  pp.  244-249,  infra  ;  Rex  v.  Looker,  pp.  242-244, 
infra;  Reg.  v.  Pook,  pp.  250-252,  infra;  Reg.  v.  Franz,  pp.  252-255^ 
infra. 

( v)  Rev  V.  Fitter,  Warwick  Summer  Assize,  1834,  coram  Taunton,  J, 


222  EXCULPATORY    PRESUMPTIONS. 

mistaken  ;  the  two  pieces  of  rope  had  in  the  interim 
been  examined  by  a  rope-maker,  and  were  found 
not  to  correspond,  one  piece  being  twisted  to  the 
right  and  the  other  to  the  left(jj/).  The  prisoner  was 
convicted  upon  the  general  evidence,  and  executed. 
Two  men  were  tried  for  killing  a  sheep  with  intent 
to  steal  the  carcass.  The  prosecutor  had  three 
sheep  on  a  common,  on  the  14th  of  December,  on 
which  evening  the  prisoners,  one  of  whom  had  a 
gun,  were  seen  near  the  common  driving  several 
sheep  before  them.  One  of  the  witnesses,  when 
near  the  prosecutor's  house,  heard  the  report  of  a 
oun  in  the  direction  of  the  common,  and,  havino;-  a 
suspicion  of  the  object  of  the  prisoners,  went  to  the 
prosecutor's  house  and  communicated  his  suspicion, 
in  consequence  of  which  the  prosecutor  and  the 
witness  went  to  the  common  on  which  the  sheep 
had  been  left  feeding,  and  discovered  that  one  of 
them  was  not  there.  The  prisoners  were  appre- 
hended the  same  night  at  their  respective  homes. 
In  the  lodgings  of  one  of  the  prisoners  a  gun  was 
found  which  had  been  recently  fired,  and  some  shot 
and  powder  wrapped  in  a  piece  of  newspaper,  from 
which  two  small  pieces  had  been  torn  ;  and  upon  the 
person  of  the  other  prisoner,  a  knife  was  found  dis- 
coloured with  blood.  No  traces  were  found  of  the 
lost  sheep  at  that  time,  but  the  next  day  the  carcass 
was  found,  concealed  by  fern,  on  the  common  ;  the 
sheep  had  been  shot  and  also  stuck  in  the  neck. 
Two  days  afterwards,  on  searching  near  the  spot 
where  the  carcass   was  found,  two  small   pieces  of 

il)  R'^K-  ^'-  Drory,  coram  Lord  Campbell,  L.  C.  J.,  Chelmsford  Spring 
Assizes,  185 1. 


EXCULPATORY    PRESUMPTIONS.  223 

newspaper  were  discovered,  singed  and  bearing 
marks  of  having  been  fired  from  a  gun,  wliich  on 
comparison  were  found  to  be  the  identical  pieces  so 
torn  from  the  paper  in  question.  Notwithstanding 
these  apparently  conclusive  circumstances,  the  jury 
acquitted  the  prisoners,  as  it  appeared  from  the 
cross-examination  of  one  of  the  witnesses  that  he 
had  seen  them  shooting  on  the  common  on  the 
previous  Sunday  (z).  A  man  was  tried  for  murder 
on  Horwich  Moor,  under  circumstances  which  were 
extremely  suspicious  ;  but  the  presumption  against 
him  was  greatly  weakened,  if  not  entirely  destroyed, 
by  the  circumstance  that  six  shots  extracted  from 
the  deceased's  brain  all  corresponded  in  weight 
with  the  shot  known  as  No.  3,  while  the  shot  in  the 
prisoner's  bag  contained  a  mixture  of  Nos.  2  and  3, 
and  the  charge  in  his  gun  was  found  to  contain  the 
same  mixture  ((T?).  The  value  of  such  exculpatory  facts 
will  perhaps  be  well  illustrated  by  a  case  of  an  opposite 
kind.  A  gamekeeper  had  been  murdered  on  Margam 
Moor,  near  Swansea.  A  formidable  piece  of  evi- 
dence against  the  prisoner  (who  was  convicted  and 
executed)  was  that  two  or  three  hundred  yards  from 
the  body  of  the  deceased  was  found  a  gun,  a  powder- 
flask,  and  a  pouch,  carefully  hidden  in  a  ditch  by 
the  side  of  a  wall.  There  could  be  no  doubt  that 
all  three  were  hidden  at  the  same  time  and  by 
the  same  person.  The  gun  was  conclusively  shown 
to    have     been    taken    by   the    prisoner    from    the 

(z)  Reg.  V.  Courtnage  and  Mossingham,  Winchester  Spring 
Assizes,   1843,  coram  Atcherley,  Serjt. 

{a)  Reg.  V.  Whittall,  Liverpool  Spring  Assizes,  1839,  coram  Alder- 
son,  B. 


224  KXCULPATORY    PRESUMPTIONS. 

house  in  which  he  was  lodging  some  two  or  three 
hours  before  the  murder  was  committed  ;  this  inter- 
val affording  ample  time  for  him  to  have  reached 
the  scene  of  the  murder.  In  close  proximity  to  the 
body  were  found  23  shots — one,  No.  6,  by  itself,  the 
other  22  in  a  pool  of  blood  close  to  the  body, 
ranging  from  BB.  to  No.  7.  The  pouch  contained 
a  quantity  of  shot  ranging  from  BB.  to  No.  8.  It 
was  shown  that  such  a  mixture  of  shot  is  extremely 
rare ;  poachers  frequently  using  mixed  shot,  but 
very  seldom  of  more  than  two  or  three  sizes  {b). 

A  druggist's  apprentice  was  tried  for  the  murder 
by  prussic  acid  of  a  female  servant  who  was 
pregnant  by  him,  and  the  case  was  one  of  much  sus- 
picion ;  but  there  was  a  strong  counter-presumption 
from  the  fact  that  the  deceased  had  made  preparations 
for  a  miscarriage  on  the  very  night  in  question  [c). 

A  man  was  tried  for  the  murder  of  a  girl  in  Poole 
Harbour  ;  the  evidence  raised  a  very  strong  pre- 
sumption that  he  had  wilfully  pushed  her  over  the 
quay  side  into  the  water  after  a  quarrel,  but  its  effect 
'was  greatly  weakened  by  the  fact  that  the  w^oman's 
shawl,  hat,  and  brooch  were  found  laid  carefully 
upon  a  post,  which  was  more  consistent  with  suicide 
than  murder,  and  the  prisoner  was  acquitted  {d).  In 
a  case  referred  to  hereafter,  evidence  of  identity  of 

{b)  Reg.  V.  Joseph  Lewis,  Swansea  Sum.  Ass.,  1898,  coram  Wills,  J. 

{c)  Reg.  V.  Freeman,  Leicester  Spring  Assizes,  1839,  coram  Best, 
L.  C.  J.  ;  and  see  Rex  v.  Barnard,  19  St.  Tr.  815. 

{d)  Reg.  V.  Trainy,  Dorchester  Assizes,  1868,  coram  Mellor,  J.  See 
Times.,  July  23rd,  1868. 


EXCULPATORY    PRESUMPTIONS.  225 

a  foreigner  as  the  murderer  of  an  old  woman  at 
Kingswood,  of  a  singularly  cogent  character,  was 
satisfactorily  explained  away  by  the  fact  that  another 
foreigner  had  stolen  his  bag  with  his  clothes  and 
papers,  and  by  other  exceptional  coincidences  {e). 

12.  Nor  must  it  be  overlooked,  as  one  of  the 
sources  of  error  and  fallacy  in  these  cases,  that 
circumstances  of  adverse  presumption,  apparently 
the  most  conclusive,  have  been  fabricated  by  the 
real  offender,  in  order  to  preclude  suspicion  from 
attaching  to  himself,  and  to  cause  it  to  rest  upon 
another;  as  where  a  party  was  convicted  upon  an 
indictment  for  privily  conveying  three  ducats  into 
the  prosecutor's  pockets,  with  intent  to  charge  him 
with  having  robbed  him  of  the  same  {/)  ;  or  where 
an    offender   surreptitiously   put    on    the   shoes   of 

(if)  R.  V.  Franz,  pp.  252-255,  injra. 

(/)  Rex  V.  Sitno?i,  19  St.  Tr.  680.  The  last  edition  of  the  present  work 
states  that  upon  a  new  trial  the  defendant  was  acquitted.  The  report 
in  the  State  Trials  show  that  a  new  trial  was  had.  The  case  was  tried 
at  the  Assizes  for  Essex  before  a  special  jury.  It  must  therefore  have 
been  removed  by  certiorari  into  the  King's  Bench.  The  charge  was 
that  of  a  misdemeanour,  so  that  a  new  trial  was  a  possibility.  The 
report,  however,  stops  with  the  statement  that  the  new  trial  took  place 
on  the  1 2th  July,  1752,  without  mentioning  the  result.  The  Editor 
has  been  unable  to  verify  the  fact  of  acquittal.  It  may,  however,  have 
been  taken  from  a  publication  called  "Ashley's  Case  and  Appeal." 
Ashley  was  the  prosecutor  on  the  first  trial.  His  attorney  had  com- 
mitted some  serious  irregularities  in  getting  the  original  warrant 
backed,  and  the  arrest  under  it  was  illegal.  Simon  brought  an  action 
against  Ashley  and  the  officers  who  made  the  arrest.  The  action  was 
tried  at  the  Guildhall  on  the  9th  July,  1752 — just  three  days  before  the 
second  criminal  trial  was  had — and  resulted  in  a  verdict  for  Simon  for 
;^2oo.  A  note  at  col.  692  of  19  St.  Tr.  quotes  from  "Ashley's  Case 
and  Appeal,"  but  the  Editor  has  not  been  able  to  find  the  publication. 
The  result  of  the  second  trial  of  Simon  is  probably  to  be  found  in  it. 

C.E.  Q 


226        EXCULPATORY  PRESUMPTIONS. 

another  person  while  engag-ed  in  the  commission  ot 
crime,  in  order  that  the  impressions  might  lead  to 
the  inference  that  the  crime  was  committed  by  the 
owner  of  the  shoes  (^). 

13.  In  f  )rming  a  judgment  as  to  a  prisoner's  interi- 
tion,  evidence  that  the  party  has  previously  borne  a 
good  character  is  often  highly  important,  and  if  the 
case  hangs  in  even  balance,  should  make  it  pre- 
ponderate in  his  favour  (/^).  But  if  the  evidence  of 
guilt  be  complete  and  convincing,  testimony  of 
previous  good  character  cannot  and  ought  not  to 
avail  (z).  The  reasonable  operation  of  such  evidence 
is  to  create  a  presumption  that  the  pnrty  was  not 
likely  to  have  committed  the  act  imputed  to  him  ; 
which  presumption,  however  weighty  in  a  doubtful 
case,  cannot  but  be  unavailing  against  evidence 
u'hich  satisfactorily  establishes  the  fact. 

Evidence  of  character  must  of  course  be  applicable 
to  the  particular  nature  of  the  charge ;  to  prove,  for 
instance,  that  a  party  has  borne  a  good  character  for 
humanity  and  kindness,  can  have  no  bearing  in 
reference  to  a  charge  of  dishonesty.  The  correct 
mode  of  inquiry  is  as  to  the  general  character  of 
the  accused.  Witnesses  as  to  character  must  not 
give  evidence   of  particular   facts,   or  of  their  own 

(^)  See  the  case  of  Fra?iqois  Mayenc^  siipra^  p.  178  ;  and  see  other 
such  cases  in  Wharton's  Criminal  Law  of  the  United  States,  Ch.  IL, 
sec.  7. 

{Ji)  Per  Lord  Ellenborough,  L.  C.  J.,  in  Rex  v.  Dav:soft,  31  St.  Tr. 
217;  and  see  the  language  of  Tindal,  L.  C.  J.,  in  Reg.  v.  Frosty 
Gurney's  Rep.  749. 

(/)  Ibid.^  and  Rex  v.  Haigh,  31  St.  Tr.  1122. 


EXCULPATORY  PRESUMPTIONS.        227 

opinions,  but  only  as  to  the  general  reputation  which 
the  accused  bears  (/,').  The  prosecutor  is  not 
allowed  to  adduce  evidence  of  a  prisoner's  bad 
character  in  order  to  prove  that  he  committed,  or 
was  likely  to  commit,  the  offence  charged.  It  has 
been  said  that  such  evidence  is  irrelevant  and 
calculated  to  lead  the  mind  to  a  collateral  issue  (/). 
But  the  truth  is  that  this  part  of  our  law  is  an 
anomaly.  Logically  speaking,  an  antecedent  bad 
character  would  form  quite  as  reasonable  a  ground  for 
the  presumption  of  guilt  as  previous  good  character 
for  the  presumption  of  innocence.  The  practice  of 
refusing  to  admit  evidence  on  the  part  of  the 
prosecution  of  a  prisoner's  bad  character,  and  of 
allowing  evidence  of  good  character  to  be  given, 
grew  up  from  a  desire  to  administer  the  law  with 
mercy  at  a  time  when  it  was  felt  to  be  too  severe  (w). 
Indeed  these  rules  are  the  result  of  policy  and 
humanity  rather  than  of  any  scientific  considera- 
tions as  to  the  strict  relevancy  of  the  evidence 
in  question  (72).  In  the  text-books  of  the  Civil 
Law,  much  stress  is  laid  upon  }nala  fania,  and  in 
Scotland  habit  and  repute  is  an  admitted  aggravation 

{k)  Reg.  V.  Row'on,  10  Cox,  C.  C.  25  ;  34  L.  J.  M.  C.  57.  But  in 
Rex  V.  Davison,  31  St.  Tr.,  col.  211,  Lord  Ellenborough,  L.  C.  J., 
admitted  evidence  of  individual  opinion  as  to  prisoner's  character  and 
only  stopped  the  statement  as  to  panicular  facts. 

(/)  Evidence  of  an  admission  by  the  accused  that  he  was  addicted 
to  the  commission  of  the  particular  offence  charged  was  rejected  as 
irrevelanl  in  Rex  v.  Cole,  Best  on  Presumptions,  p.  212. 

{m)  The  frequency  of  capital  punishmeat  in  old  times  has  to 
answer  for  many  anomalies  and  not  a  few  mischievous  subtleties 
and  refinements  in  English  criminal  law. 

[n)  See  per  Cockburn,  L.  C.  J.,  and  Willes,  J.,  in  Reg.  v.  Rowtofi, 
note  {k),  supra. 

q  2 


228         EXCULPATORY  PRESUMPTIONS. 

in  char.L;cs  of  theft  {o),  but  there  are  not  wantin^,^ 
exemphfications  of  the  danger  of  permitting  the 
inllucnce  of  such  evidence. 

If,  however,  the  presumption  arising  from  the 
evidence  of  previous  good  character  be  set  up  by 
the  prisoner,  it  is  then  competent  to  neutraHze  its 
effect  by  the  cross-examination  of  his  witnesses, 
either  as  to  particular  facts  (/),  or  as  to  the  grounds 
of  their  beHef  {q)  for  the  purpose  of  discrediting 
their  testimony  ;  it  is  even  competent  to  repel  such 
evidence  by  calling  witnesses  to  give  evidence  of  the 
prisoners  general  bad  character,  though  such  a 
course  would  be  somewhat  unusual  (r).  Thus  where 
a  prisoner  was  indicted  for  a  highway  robbery,  and 
called  a  witness  who  deposed  to  having  known  him 
for  years,  during  which  time  he  had  borne  a  good 
character,  it  was  permitted  to  ask  the  witness  on 
cross-examination  whether  he  had  not  heard  that 
the  prisoner  was  suspected  of  having  committed  a 
robbery  which  had  taken  place  in  the  neighbourhood 
some  years  before;  Mr.  Baron  Parke  said,  that 
"  the  question  is  not  whether  the  prisoner  was 
guilty  of  that  robbery,  but  whether  he  was  S7is- 
pected  of  having  been  implicated  in  it.  A  man's 
character,"  added  the  learned  judge,  "is  made  up 
of  a  number  of  small  circumstances,  of  which  his 
being    suspected    of    misconduct    is    one"  (i");    but 

[p)  I  Dickson's  Law  of  Evidence  in  Scotland,  vol.  i.,  §  30,  pp.  23,  23. 
\p)  Reg.  V.  Hodgkms,  7  C.  &  F.  298. 
(^)  Taylor's  Law  of  Evidence,  9th  ed.,  1895,  p.  250. 
(r)  Reg.  V.  Row f on,  10  Cox,  C.  C.  25  ;   34  L.  J.  M.  C.  57  (overruling 
Ref;.  V.  Bur/,  5  Cox,  C.  C.  284). 

{s)  Rex  V.  Woody  5  Jurist,  225  ;  and  Best  on  Pros.  p.  215. 


EXCULPATORY  PRESUMPTIONS.         229 

Mr.  Justice  Erie  refused  to  permit  the  cross-exami- 
nation of  a  witness  to  character  as  to  circumstances 
of  suspicion  against  the  prisoner  which  occurred 
upon  the  same  day  as  the  alleged  offence  was 
committed  (/). 

As  a  general  rule,  neither  the  prosecutor  nor  the 
prisoner  can  enter  into  evidence  as  to  particular 
facts  of  good  or  bad  conduct :  but  an  exception  to 
^the  rule  was  created  by  statute  6  &  7  William  IV. 
c.  Ill,  which  enacts  that,  if  upon  the  trial  of  any 
person  for  any  subsequent  felony,  such  person  shall 
^\N^  evidence  of  his  good  character,  it  shall  be 
lawful  for  the  prosecutor  in  answer  thereto,  to  give 
evidence  of  the  conviction  of  such  prisoner  for  the 
previous  felony  ;  and  that  the  jury  shall  inquire  of 
the  previous  conviction  and  subsequent  offence  at 
the  same  time;  and  this  provision  has  been  extended 
by  Sr.  14  &  15  Vict.  c.  19,  s.  9  (?/),  to  many  mis- 
demeanours. The  statutes  equally  apply  where  the 
evidence  of  good  character  is  obtained  by  the 
prisoner's  counsel  on  the  cross-examination  of  the 
witnesses  for  the  prosecution  {x\  These  rules  have 
been  carefully  preserved  by  the  Criminal  Evidence 
Act,  1898  {y),  which,  while  introducing  the  great 
modern  change  of  allowing  every  accused  person  to 
give  evidence  on  his  own  behalf,  provides  that  a  person 
charged  and  called  as  a  witness  shall  not  be  asked, 
and  if  asked  shall  not  be  required  to  answer,  any 

(/)  Reg.  V.  Rogan  and  Elliott,  i  Cox,  C.  C.  291. 
(«)  See  now  the  Larceny  Act,  1861   (24  &  25  Vict.  c.  96,  s.  116), 
and  24  &  25  Vict.  c.  99,  s.  y],  as  to  coinage  offences. 
(x)  Reg.  V.  Shrimpton,  3  C.  &  K.  y]^ 
\y)  61' &  62  Vict.  c.  36,  s.  I  (/), 


230  EXCULPATORY    PRESUMPTIONS. 

question  tending  to  show  that  he  has  committed  or 
been  convicted  of  or  been  charged  with  any  offence 
other  than  that  wherewith  he  is  tlien  charged,  or  is 
of  bad  character,  unless-  (i.)  the  proof  that  he  has 
committed  or  been  convicted  of  such  other  offence  is 
admissible  evidence  to  show  that  he  is  guilty  of  the 
offence  wherewith  he  is  then  charged  ;  or(ii.)  he  has 
personally  or  by  his  advocate  asked  questions  of  the 
witnesses  for  the  prosecution  with  a  view  to  establish 
his  own  good  character,  or  the  nature  or  conduct  of 
the  defence  is  such  as  to  involve  imputations  on 
the  ch::racter  of  the  prosecutor,  or  the  witnesses 
for  the  prosecution  ;  or  (iii.)  he  has  given  evidence 
against  any  other  person  charged  with  the  same 
offence. 

14.  Of  all  kinds  of  exculpatory  defence,  that  of  an 
alibi,  if  clearly  established  by  unsuspected  testimony, 
is  the  most  satisfactory  and  conclusive.  While  the 
foreeoinof  considerations  are  more  or  less  of  an 
argumentative  and  inconclusive  character,  this 
defence,  if  the  element  of  time  be  definitely  and 
conclusively  fixed,  and  the  accused  be  shown  to  have 
been  at  some  other  place  at  the  time,  is  absolutely 
incompatible  with,  and  exclusive  of,  the  possibility 
of  the  truth  of  the  charge.  "  It  must  be  admitted," 
says  Sir  Michael  Focter,  "that  mere  alibi  evidence 
lieth  under  a  great  and  general  prejudice,  and  ought 
to  be  heard  with  uncommon  caution ;  but  if  it 
appeareth  to  be  founded  in  truth,  it  is  the  best 
negative  evidence  that  can  be  offered :  it  is  really 
positive  evidence,  which  in  the  nature  of  things 
necessarily  implieth  a  negative ;  and  in  many  cases 


EXCULPATORY    PRESUMPTIONS.  23 1 

it    is    the    only    evidence    an    innocent    man    can 
offer"  (2). 

It  is  obviously  essential  to  the  proof  of  an  alibi 
that  it  should  cover  and  account  for  the  whole  of  the 
time  of  the  transaction  in  question,  or  at  least  for  so 
much  of  it  as  to  render  it  impossible  that  the  prisoner 
could  have  committed  the  imputed  act ;  it  is  not 
enough  that  it  renders  his  guilt  improbable  merely, 
and  if  the  time  is  not  exactly  fixed,  and  the  place  at 
which  the  accused  is  alleged  by  the  defence  to  have 
been  is  not  far  off,  the  question  then  becomes  one  of 
opposing  probabihties.  A  defence  of  an  alibi  was 
therefore  disregarded,  because  all  that  the  prisoners 
offered  to  prove  was  that  they  were  in  bed  on  the 
night  in  question  at  twelve  o'clock,  and  were  found  in 
bed  next  morning,  after  the  arson  v/ith  which  they 
were  charged  had  taken  place,  the  distance  being  two 
miles,  so  that  they  might  have  risen,  committed  the 
deed,  and  returned  to  bed(^).  On  the  trial  of  a 
man  for  the  murder  of  a  young  woman  under 
circumstances  of  the  strongest  adverse  presumption, 
the  proof  was  that  the  deceased  had  been  murdered 
at  her  father's  cottage  in  the  forenoon  of  the  day  in 
question,  and  the  prisoner  alleged  that  he  was  at 
work  the  whole  of  that  day  with  his  fellow- labourers 
at  a  distance  from  the  cottage  :  but  it  turned  out 
that  he  had  been  absent  from  his  work  about  half- 
an-hour,  an  interval  sufficiently  long  to  have  enabled 

{z)  Foster's  Discourses  on  the  Crown  Law,  p.  368  ;  and  see  the 
observations  of  George,  B.,  in  Rex  v.  Brennaii,  30  St.  Tr.  col.  79. 

[a)  Rex  V.  Frazer,  Alison's  Principles  of  the  Criminal  Law  of 
Scotland,  vol.  ii.,  p.  625. 


232         EXCULPATORY  PRESUMPTIONS. 

him  to  reach  the  cottage,  commit  the  murder,  and 
rejoin  his  fellow- workmen.  He  was  convicted,  and 
before  his  execution  confessed  his  g^uilt  [d] 

The  credibility  of  an  aiibi  is  greatly  strengthened 
if  it  be  set  up  at  the  moment  when  the  accusation  is 
first  made,  and  be  consistently  maintained  through- 
out the  subsequent  proceedings.  These  conditions 
were  remarkably  fulfilled  in  the  memorable  case  of 
Abraham  Thornton,  of  which  a  full  account  will  be 
given  hereafter.  To  all  appearance  the  guilt  of  the 
prisoner  was  the  necessary  conclusion  from  the 
supposed  inculpatory  facts,  and  yet  he  had  been  seen 
by  a  number  of  independent  and  unimpeachable 
witnesses  at  such  a  distance  from  the  scene  of  the 
alleged  murder,  at  the  very  time  when  it  must  have 
been  committed,  if  at  all,  as  to  render  it  physically 
impossible  that  the  deceased  could  have  been 
murdered  by  him;  and  all  the  facts  supposed  to 
have  been  the  conclusive  indications  of  guilt  were 
satisfactorily  explained  by  collateral  circumstances, 
and  by  a  different  hypothesis  [c). 

On  the  other  hand,  it  is  a  material  circumstance 
to  lessen  the  weight  of  this  defence,  if  it  be  not 
resorted  to  until  some  time  after  the  charge  has 
been  made  [d),  or  if  nothing  happened  immediately 

{b)  Rex  V.  Ric/iardsott,  pp.  384-389,  mfra,  and  R.  v.  Midler^  C.  C.  C. 
Oct.  27,  1864. 

{c)  Rex\.  Thornton,  pp.  244-249,  ittfra;  and  see  Rex  v.  Canning, 
19  St.  Tr.  283,  where  the  prosecutrix  of  a  capital  charge  was  convicted 
of  perjury  on  the  evidence  of  thirty-eight  witnesses  who  proved  an 
alibi  (see  p.  209,  supra). 

(</)  See  pp.  85-87,  supra. 


EXCULPATORY    PRESUMPTIONS.  233 

after  the  transaction  to  lead  the  witnesses  to  watch 
so  as  to  be  accurate  with  respect  to  the  hour  or 
time  to  which  they  speak,  even  supposing  them 
to  depose  under  no  improper  bias  or  influence  {e); 
or  if  having  been  once  resorted  to,  a  different 
and  inconsistent  defence  is  afterwards  set  up. 
There  are  many  other  sources  of  fallacy  con- 
nected with  this  particular  defence  ;  such  as  mistake 
as  to  the  person  from  want  of  opportunity  of 
accurate  observation, — or  other  causes  of  miscon- 
ception,—  the  possible  difference  of  clocks  {/),  or 
the  fraudulent  alteration  of  them  to  tally  with  other 
facts  ;  as  where  one  of  the  perpetrators  of  a  murder 
hastened  home,  put  back  the  clock  two  hours,  and 
went  to  bed ;  and  shortly  afterwards  awoke  his 
servant,  and  told  her  to  go  down-stairs  and  see  what 
was  the  time,  which  she  did,  not  knowing  that  the 
clock  had  been  tampered  with  ;  so  that  her  testimony 
led  to  his  acquittal  (^). 

A  group  of  irrelevant  facts  is  sometimes  artfully 
arranged  so  as  to  give  an  appearance  of  reality  and 
coherence  to  the  defence,  the  facts  being  true  in 
themselves,  but  fraudulently  referred  to  the  critical 
day  or  time,  instead  of  to  the  real  time  of  their 
occurrence  (/i)  ;  or   such   a   misstatement  may  take 

(e)  Per  Le  Blanc,  J.,  in  Rex  v.  Mellor  and  others^  31  St.  Tr.  1032  ; 
and  see  Rex  v.  Haigh,  ib.  t  1 18  ;  and  the  observations  of  Shaw,  C.  J., 
in  Professor  Webster's  case,  Bemis's  Rep.,  at  p.  478  ;  see  p.  109, 
supra. 

(/)  Rex  V.  Schofield,  31  St.  Tr.  1063  ;  Rex  v.  Mellor,  ib.  1027., 

{g)  Rex  V.  Hardy ;  see  Times  of  the  28th  November,  1857,  where  it 
is  stated  that  one  of  the  murderers  made  a  circumstantial  confession 
on  his  death-bed. 

{Jt)  See  a  case  of  this  kind  in  8  Lond.  Med.  Gaz.  36. 


234  EXCULPATORY    PRESUMPTIONS. 

place  by  unintentional  mistake  (z).  In  an  American 
case,  where  several  persons  were  tried  for  an 
atrocious  murder,  it  appears  to  have  been  a  part 
of  the  plot  for  each  of  the  prisoners  to  sleep  on  the 
night  of  the  murder  with  some  one  who  could  testify 
to  an  alibi.  One  of  the  murderers  had  requested  a 
man  to  sleep  in  his  house ;  but  the  witness  stated 
that  he  mi<^ht  have  been  absent  while  he  was  asleep. 
Another  of  them  went  several  miles  from  the  place 
of  the  murder  to  sleep,  and  the  person  in  whose 
house  he  stayed  had  no  doubt  that  he  was  within- 
doors the  whole  night.  Two  others  of  them  went  to 
a  tavern  several  miles  from  the  scene  of  the  murder, 
and  went  to  bed  together  ;  but  in  the  night  one  of 
them  was  discovered  leaving  the  house,  although  he 
evidently  wished  to  be  unnoticed  ;  and  he  was  absent 
so  long,  not  returning  until  the  morning,  as  to  alarm 
the  tavern-keeper,  who  with  his  wife  made  diligent 
search  for  him  in  the  neighbourhood,  but  his  bed- 
fellow manifested  no  anxiety  or  alarm,  and  got  up 
and  assisted  in  the  search  {k\ 

This  defence  is  especially  easy  of  fabrication  or 
mistake  in  regard  to  the  essential  element  of  time, 
where  a  few  minutes  may  be  of  vital  moment ;  and 
the  unblushing  effrontery  with  which  witnesses 
sometimes  present  themselves  to  speak  to  time, 
without  regard  to  plausibility  or  consistency,  is  truly- 
surprising.  On  a  trial  for  murder,  two  witnesses 
who  were  called  to  support  a  defence  of  an  alibi 
swore  that  they  were  able  to  speak  positively  to  the 

(?)  Rex  V.  Baines,  31  St.  Tr.  1091  ;  Rex  v.  Haigh,  ib.  11 18. 
{^k)  Case  ol  Bauer  and  others^  2  Chandler.  Anier.  Cr.  Tr.  3.56. 


EXCULPATORY    PRESUMPTIONS.  235 

time,  from  having  looked  at  a  clock  ;  but  upon  being 
required  by  the  counsel  for  the  prosecution  to  tell 
the  time  by  the  clock  in  court,  after  some  hesitation 
admitted  that  they  were  unable  to  do  so  (/).  In 
another  case  it  was  elicited  in  cross-examination  of 
a  woman  with  whom  the  prisoner  lived,  that  on  his 
return  home  after  an  absence  of  an  hour,  during 
which  he  committed  two  murders,  he  told  her  to  say 
that  he  had  not  been  out  more  than  ten  minutes  (;;2). 

Wherever  pertinent  and  material  evidence  by 
which  an  alibi  might,  if  true,  have  been  supported, 
is  withheld  (??),  or  the  defence  fails  of  being  supported 
by  credible  and  sufficient  evidence,  or  is  detected  to 
be  the  result  of  afterthought  or  contrivance,  or  is  con- 
tradicted, or  otherwise  rebutted,  the  attempt  to  set  it 
up  recoils  with  fatal  effect  upon  the  party  who  asserts 
it ;  and  often,  in  the  language  of  a  learned  judge  on 
the  Irish  bench,  "amounts  to  a  conviction" (<?). 

**  The  truth  of  this  sort  of  defence,"  said  Mr. 
Baron  George,  "  is  not  always  to  be  ascertained  by 
the  direct  testimony  of  the  witnesses  called  to  prove 
it.  Several  witnesses  are  seldom  produced  in  such 
cases  without  its  being  known  that  they  agree  with 
each  other  in  the  substantial  and  principal  fact  they 
are  to  relate  ;  and  as  in  general  it  is  not  to  be  ex- 
pected that  a  prosecutor  should  come  with  evidence 
prepared  to  meet  this  sort  of  defence,  the  usual  test 

(/)  Reg.  V.  Cane  and  others,  C.  C.  C,  June  20,  185 1. 
[vi)  Reg.  V.  Rush,  Norfolk  Spr.  Ass.  1849. 

[n)  Rex  V.  Haigh  and  others,  31  St.  Tr.  1118  ;  Reg.  v.  Hunter  and 
others,  Court  of  Justiciary,  Jan.  1838,  Shorthand  Report,  p.  365. 
(<?)  Per  Daly,  B.,  in  Rex  v.  Killen,  28  St.  Tr.  1085. 


236  EXCULPATORY    PRESUMPTIONS. 

of  its  truth  or  of  its  falsehood,  where  they  are  un- 
known to  the  jury,  is  a  cross-examination  of  the 
witnesses,  kept  asunder,  and  fairly  conducted  under 
the  eye  and  observation  of  the  jury  ;  and  here  differ- 
ences or  contradictions,  otherwise  trivial,  become 
important  in  showing  the  truth  or  falsehood  of  such 
narrative  "  (/).  In  such  circumstances,  if  the  story 
be  a  fabrication,  it  is  obviously  far  more  easy  for  the 
witnesses  to  acree  on  the  mere  oreneral  fact  of  the 
prisoner's  presence  at  the  time  and  place  referred 
to,  than  on  the  minute  surrounding  particulars  {q) 

The  foregoing  examples  suffice  to  illustrate  the 
subject  of  exculpatory  presumptions  ;  but  it  is  obvious 
that  as  inculpatory  facts  are  infinitely  diversified, 
exculpatory  facts  must  admit  of  the  same  extent  of 
variety,  and  that  they  may  be  of  every  degree  of 
force  (r).      In  all  such  cases  of  conflicting  presump- 

[p)  Rex  V.  Brenna7i^  30  St.  Tr.  79. 

{q)  Reg.  V.  Hunter.  See  note  {n\  p.  235,  supra.  When  the  Editor 
first  joined  the  Midland  circuit  in  the  spring  of  1852,  Nottingham 
enjoyed  an  unenviable  notoriety  as  a  place  where  manufactured  alibis 
flourished.  The  late  Lord  Chief  Justice  Jervis  presided  in  the  Crown 
Court  at  Nottingham  on  that  circuit,  and  after  having  torn  a  false 
alibi  to  pieces  by  a  most  acute  cross-examination,  told  the  jury  that 
each  county  he  went  into  had  its  own  crop,  and  that  the  special  crop 
of  the  county  of  Nottingham  appeared  to  be  alibis.  Mr.  M.  D.  Hill, 
the  very  learned  and  able  first  Recorder  of  Birmingham,  once 
defended  a  man  at  Nottingham  who  was  acquitted  on  evidence  of  an 
alibi.  He  afterwards  sought  Mr.  Hill  and  confessed  to  him  that  the 
alibi  was  a  fabricated  one,  and  described  to  him  two  methods  by 
which  alibis  were  got  up,  either  of  which  was  difficult  of  detection. 
They  are  as  present  to  the  Editor's  recollection  as  when  he  heard  the 
story  from  Mr.  Hill's  lips,  but  he  hesitates  to  put  into  print  anything 
which  could  help  to  suggest  the  means  of  success  in  such  an 
enterprise. 

(r)  Traitd  de  la  Preuve,  par  Mittermaier,  ch.  56. 


EXCULPATORY    PRESUMPTIONS.  237 

tions  it  is  the  duty  of  the  jury,  with  the  assistance 
of  the  Court,  to  weigh  and  estimate  the  force  of 
each  several  circumstance  of  presumption,  and  to 
act  upon  what  appear  to  be  the  superior  proba- 
bilities of  the  case  ;  and  if  there  be  not  a  decided 
preponderance  of  evidence  to  establish  the  guilt  of  the 
party,  to  take  the  safe  and  just  course,  by  abstaining 
from  pronouncing  a  verdict  of  guilt,  where  the 
necessary  light  and  knowledge  to  justify  them  in  so 
doing  with  the  full  assurance  of  moral  certainty,  is 
unattainable. 


AMERICAN    NOTES. 

[Note  to  Chapter  V.] 

Conclusions  Exculpatory  Presu7nptions. 

"  Conclusive  presumptions  of  law  are  also  made  in  respect  to 
infants  and  married  women.  Thus,  an  infant  under  the  age  of 
seven  years  is  conclusively  presumed  to  be  incapable  of  commit- 
ting any  felony,  for  want  of  discretion ;  and,  under  fourteen,  a 
male  infant  is  presumed  incapable  of  committing  a  rape.  A  female 
under  the  age  of  ten  years  is  presumed  incapable  of  consenting 
to  sexual  intercourse.  Where  the  husband  and  wife  cohabited 
together,  as  such,  and  no  impotency  is  proved,  the  issue  is  conclu- 
sively presumed  to  be  legitimate,  though  the  wife  is  proved  to  have 
been  at  the  same  time  guilty  of  infidelity,  and  if  a  wife  act  in  com- 
pany with  her  husband  in  the  commission  of  a  felony,  other  than 
treason  or  homicide,  it  is  conclusively  presumed  that  she  acted 
under  his  coercion,  and  consequently  without  any  guilty  intent." 
Greenleaf  on  Evid.,  i6  ed.  §  28. 

Presumption  of  Coercion  by  Husband. 

Where  a  wife  was  accused  of  being  accessory  to  a  murder  by  her 
husband,  proof  that  she  tried  to  conceal  the  crime  and  to  divert 
suspicion  from  her  husband  was  held  not  to  overcome  the  pre- 
sumption that  she  had  acted  under  her  husband's  compulsion  if 
she  had  any  part  at  all  in  the  crime.     State  v.  Kelly,  74  Iowa, 

589. 

Presumption  that  a  Husband  has  Affection  for  his    Wife. 

It  is  to  be  presumed,  there  being  no  evidence  to  the  contrary, 
that  a  husband  loves  and  will  protect  his  wife.  So  if  one  is 
accused  of  wife  murder,  he  can  claim  the  benefit  of  not  only  the 
ordinary  presumption  of  innocence,  but  of  the  equally  favorable 
presumption  arising  from  the  marital  relation.  State  v.  Moxley, 
102  Mo.  374. 


237  3  AMERICAN   NOTES. 

To  rebut  this  presumption,  the  prosecution  may  introduce  any 
evidence  showing  an  alienation  of  affection  and  a  desire  to  be  rid 
of  the  burdens  and  duties  of  the  relation.  So  acts  and  declara- 
tions may  be  given  in  evidence  indicating  that  the  accusetl 
regarded  his  spouse  with  feelings  of  unkindncss,  hatred,  or 
contempt.  State  71.  Cole,  63  Iowa,  695  ;  People  v.  Hendrickson, 
I  Parker  Crim.  (N.  Y.)  406  ;  Mack  v.  State,  48  Wis.  271. 

So  the  accused  may  be  shown  to  have  made  an  unsuccessful 
attempt  to  get  his  spouse  to  consent  to  a  divorce  (State  ?'.  Jones, 
3  S.  E.  507)  ;  or  to  have  f:iiled  to  obtain  the  pecuniary  advantage 
which  he  had  expected  from  the  marriage  (People  v.  Hendrick- 
son, I  Parker  Crim.  (N.  Y.)  406)  ;  or  to  have  been  guilty  of  adul- 
tery during  the  life  of  the  tleceased  spouse.  State  v.  Watkins, 
9  Conn.  47  ;  Wharton  7'.  State,  73  Ala.  366. 

The  State  may  repel  the  presumption  of  conjugal  affection  by 
proof  that  the  marriage  with  deceased  was  bigamous  and  that  de- 
fendant immediately  married  a  third  woman  (State  7>.  Green,  35 
Conn.  203),  and  by  proof  that  defendant  showed  indifference  as 
to  his  wife's  death.     People  v.  Greenfield,  23  Hun,  454  ;  affirmed 

85  N.  Y.  75- 

Where  a  husband  is  charged  with  cruelty  or  violence  towards 
his  wife,  there  is  a  legal  presumption  of  his  innocence,  arising 
from  their  relation,  and  the  mutual  affection  by  which  it  is  com- 
monly accompanied.     State  v.  Green,  35  Conn.  205. 

Prestimption  of  Innocence. 

In  Greenleaf  on  Evidence,  §  34,  it  is  said  :  "  Thus,  as  men  do 
not  generally  violate  the  penal  code,  the  law  presumes  every  man 
innocent ;  but  some  men  do  transgress  it,  and  therefore  evidence 
is  received  to  repel  this  presumption.  This  legal  presumption  of 
innocence  is  to  be  regarded  by  the  jury,  in  every  case,  as  matter 
of  evidence  to  the  benefit  of  which  the  party  is  entitled."  See 
also  Coffin  v.  U.  S.,  156  U.  S.  432.  But  the  statement  that  the 
presumption  of  innocence  is  to  be  regarded  as  evidence  is  very 
generally  disapproved  and  is  wholly  illogical.  See  State  v.  Smith, 
65  Conn.  283  ;  Agnew  v.  U.  S.,  165  U.  S.  36  ;  Thayer,  Prelim. 
lYeatise  on  Evid.,  p.  551,  and  Wigmore's  note  to  §  34,  Greenleaf 
on  Evid.,  1 6th  ed. 

The  presumption  that  life  continues  relieves  the  prosecution  of 


AMERICAN   NOTES.  237  c 

the  necessity  of  introducing  evidence  to  show  that  life  continued 
to  exist  up  to  the  moment  of  the  fatal  blow.  The  presumption 
of  innocence  does  not  overcome  the  foregoing  presumption. 
"The  prisoner's  child  was  seen  alive  in  her  arms,  at  half-past  six 
o'clock  in  the  morning,  healthy  and  vigorous ;  and  at  eleven  at 
night  it  was  found  dead,  with  marks  of  suffocation  on  its  person. 
The  presumption  then  is,  that  it  was  alive  when  these  marks  were 
impressed."     Com.  v.  Harman,  4  Pa.  St.  269,  273. 

Where  defendant  was  charged  with  the  murder  of  his  daughter, 
the  jury  should  be  charged  that  innocence  is  presumed,  but  not 
that  the  law  presumes  an  affection  for  one's  child.  Hawes  v. 
State,  88  Ala.  37. 

The  presumption  of  innocence  casts  the  burden  of  proving 
guilt  upon  the  State,  but  it  does  no  more.  While  it  calls  for  evi- 
dence from  the  State,  it  is  not  itself  evidence  for  the  accused. 
State  V.  Smith,  65  Conn.  283. 

Self- Defence  in  Homicide. 

The  accused  may  show  the  imminence  of  danger  to  himself 
from  the  deceased,  and  likewise  his  apprehension  of  danger. 

In  Duncan  v.  State,  84  Ind.  204,  he  was  allowed  to  testify 
that  he  believed  his  life  to  be  in  danger.  State  v.  Collins, 
32  Iowa,  36  ;  Williams  v.  Com.,  90  Ky.  596  (where  such  belief 
was  admitted  after  proof  that  deceased  had  pointed  a  gun  at 
defendant).  See  Com.  v.  Crowley,  165  Mass.  569;  cotifra,  as 
to  defendant's  belief  and  apprehensions.  State  v.  Gonce,  87 
Mo.  627. 

The  conduct  of  the  deceased  at  the  time  of  the  homicide  may 
be  proved  to  support  the  claim  of  self-defence  on  the  part  of 
the  accused.  Pritchett  v.  State,  22  Ala.  39,  58  Am.  Dec.  250; 
Williams  v.  People,  54  111.  422  ;    Frody  v.  State,  67  Tenn.  349. 

The  manner  in  which  the  deceased  advanced  upon  the  defend- 
ant may  be  shown.      Frody  v.  State,  67  Tenn.  349. 

The  defendant  may  show  that  deceased  made  a  vicious  as- 
sault upon  another  just  prior  to  the  homicide,  but  he  cannot 
show  that  such  other  person's  nerves  and  mind  were  perma- 
nently injured.  State  v.  Sorenson,  32  Minn.  118;  19  N.  W. 
73S. 

The  defendant  in  homicide  may  show  that  the  deceased  said 


237^  AMERICAN   NOTES. 

before  death,  "  I  would  have  gotten  him  if  he  had  not  been  too 
quick  for  me,"  as  tending  to  prove  self-defence.  Brown  v.  State, 
74  Ala.  4 78. 

The  defendant  may  show  that  he  intervened  in  a  quarrel  be- 
tween deceased  and  another  and  may  prove  the  character  of  that 
quarrel.      Prior  ?'.  State,  77  Ala.  56. 

A  wife  who  killed  her  husband  may  show  that  he  was  attack- 
ing her  with  a  hoe  and  that  he  had  at  other  times  attacked  and 
threatened  her.     Williams  v.  State  (Tex.),  70  S.  W.  756. 

The  defendant's  reputation  for  peace  is  relevant  to  show  the 
probability  that  he  acted  in  self-defence.  State  v.  Cushing,  14 
Wash.  527,  53  Am.  St.  Rep.  883. 

But  evidence  that  the  defendant  asked  another  to  go  to  the 
assistance  of  the  deceased  after  the  injury  is  no  evidence  to 
prove  self-defence.     State  ?'.  Roberts,  63  Vt.   139. 

Where  the  defendant  claimed  that  he  killed  deceased  defend- 
ing himself  from  a  mob,  he  may  prove  the  cries  of  the  mob  from 
the  time  it  formed  to  show  its  temper  and  purpose.  Goins  v. 
State,  46  Ohio  St.  457. 

Previous  Attacks  by  Deceased. 

The  defendant,  in  order  to  corroborate  other  evidence  of  self- 
defence,  may  show  that  the  deceased  had  made  a  previous  attack 
on  him.  Gunter  v.  State,  in  Ala.  23,  56  Am.  St.  Rep.  17; 
State  V.  Graham,  61  Iowa,  608;  Jackson  v.  State,  28  Tex.  App. 
108. 

But  such  evidence  is  not  admissible  where  there  is  no  evidence 
upon  which  to  base  a  reasonable  inference  that  the  defendant 
acted  in  self-defence.     State  v.  Jefferson,  43  La.  Ann.  995. 

Attacks  by  Deceased  on   Others. 

To  show  who  was  the  aggressor  where  evidence  is  conflicting, 
the  defendant  may  show  that  the  deceased  attacked  others  on 
the  way  to  the  scene  of  the  homicide.  State  v.  Beird  (Iowa), 
92   N.  W.  694. 

Reasonable  Apprehension  of  Danger. 

Where  the  defendant,  charged  with  assault  with  intent  to  kill, 
had  fired  at  individuals  whom  he  believed  had  been  members  of  a 


AMERICAN   NOTES.  237^ 

bnnd  of  Whitecappers  that  had  assaulted  the  defendant,  evidence 
of  the  W'hitecapping  assault  is  admissible  to  show  the  ground 
for  the  defendant's  apj^rehension  of  danger  when  he  fired. 
Davids  v.  People,   192   111.   176. 

The  defendant,  in  homicide,  may  not  prove  that  the  deceased 
had  had  fears  of  an  attack  by  other  parties.  State  v.  Patrick, 
48  N.  C.  443  ;  Woolfolk  v.  State,  85  Ga.  69  ;  Com.  v.  Schmous, 
162  Pa.  326. 

In  Boyle  v.  State,  97  Ind.  322,  the  defendant  was  allowed 
to  testify  that  the  deceased  had  told  him  of  assaults  made 
by  deceased  upon  others  and  that  he  preferred  a  knife  to  a 
gun. 

The  defendant  may  show  that  he  had  been  told  that  deceased 
was  a  dangerous  man,  where  the  issue  is  self-defence,  to  show 
that  he  had  reasonable  ground  for  apprehension.  State  v.  Cross, 
68  Iowa,  180;  People  v.  Powell,  87  Cal.  348,  11  L.  R.  A.  75. 

The  defendant  may  not  prove  that  he  told  a  third  party  that 
he  was  afraid  of  the  deceased,  when  the  latter  had  at  that  time 
done  nothing  to  excite  fear.  State  v.  Carey,  56  Kan.  84,  42 
Pac.   371. 

Where  the  claim  was  self-defence  the  defendant  was  not  al- 
lowed to  prove  certain  previous  acts  of  precaution  on  his  part  to 
show  his  fear  of  the  accused.     Nunn  v.  Com.,  t^t,  S.  \V.  941. 

Evidence  that  defendant  was  in  such  nervous  condition  as  to 
be  likely  to  apprehend  violence  and  danger  is  not  admissible. 
State  V.  Shoultz,  25   Mo.  128;  State  v.  Sorenson,  32  Minn.  118. 

The  belief  of  the  defendant  that  the  deceased  would  carry  out 
his  threat  to  kill  is  not  admissible.     People  v.  Ryan,  55  Hun,  214. 

Defendant  may  prove  that  deceased  had  said  in  defendant's 
presence  that  he  carried  firearms.  People  v.  Adams,  137  Cal. 
580.  In  such  case  the  State  may  show  that  deceased  was  not 
armed.     Ibid. 

Intention  of  the  Deceased. 

What  the  real  intention  of  the  deceased  toward  the  defendant 
was  is  immaterial  on  the  question  of  self-defence ;  it  is  the 
appearance  of  intention  as  presented  to  the  defendant  that  must 
justify  him.  People  v.  Fitchpatrick,  106  Cal.  286,  39  Pac.  605. 
Yet  surely  the  real  intention  is  some  evidence  as  to  what  the 
appearance  of  intention  was. 


237/  AMERICAN   NOTES. 

Size  and  Strength  of  Deceased. 

The  defendant  may  show  that  the  deceased  was  larger  and 
stronger  than  himself.  Smith  v.  U.  S.,  i6i  U.  S.  85  ;  Com.  v. 
Barnacle,  134  Mass.  215,  45  Am.  Rep.  319. 

The  defendant  was  allowed  to  show  that  he  was  small,  weak, 
and  nearly  blind,  while  deceased  was  violent  and  powerful. 
Brumley  v.  State,  21   Tex.  App.   222,   17  S.  W.   140. 

The  defendant  may  show  that  the  deceased  was  a  large  man, 
was  in  the  habit  of  carrying  arms,  and  started  the  fight.  State  v. 
Yokum  (S.  D.),  84  N.  W.  389. 

Apprehension  of  Others. 

The  defendant  is  not  allowed  to  show  that  third  persons 
thought  or  said  he  was  in  danger  from  the  deceased.  Hudgins 
V.  State,  2  Ga.  173;  State  v.  Rhoads,  29  Ohio  St.  171  ;  State  v. 
Summers,  36  S.  C.  479  ;  contra,  Stroud  v.  Com.  (Ky.),  19  S.  W. 
976. 

But  in  People  v.  Lilly,  38  Mich.  270,  third  parties  were  al- 
lowed to  testify  that  deceased's  conduct  was  so  violent  as  to 
make  them  afraid. 

And  the  defendant  may  prove  that  third  parties  had  told 
him  that  the  deceased  was  a  dangerous  man.  Childers  v. 
State,  30  Tex.  App.   160,   16  S.  W.  903. 

In  Phipps  V.  State,  36  Tex.  Cr.  R.  216,  t,()  S.  W.  753,  an 
officer  was  allowed  to  say  that  the  reason  he  followed  deceased  to 
defendant's  place  of  business  was  that  he  looked  for  trouble. 

Hatred  of  Defendant  by  Deceased. 

Letters  of  deceased  to  third  parties,  showing  bitter  hatred  of 
defendant,  the  contents  of  which  had  been  communicated  to  the 
defendant,  may  be  given  in  evidence.  Ball  v.  State,  29  Tex. 
App.   107,   14  S.  W.   1012. 

Previous  difficulties  and  ill-feelings  may  be  proved  by  the  de- 
fendant in  corroboration  of  other  evidence  reasonably  indicating 
that  the  act  may  have  been  in  self-defence.  DeForest  v.  State, 
21  Ind.  23;  State  v.  Schleagel,  50  Kan.  325  ;  Russell  v.  State, 
1 1  Tex.  App.  2 88. 


AMERICAN   NOTES.  237^ 

Self- Defence  —  Threats  of  Deceased. 

Threats  made  by  the  deceased  against  the  accused  are  admis- 
sible whether  they  were  communicated  to  the  accused  or  not.  If 
communicated,  they  would  assist  in  proving  self-defence,  and 
that  the  defendant  was  under  a  reasonable  apprehension  of  dan- 
ger. If  uncommunicated,  they  would  at  least  tend  to  show  that 
the  deceased  was  the  aggressor.  "  The  philosophy  of  the  matter 
is  that  where  there  has  been  an  encounter,  and  it  is  not  shown  by 
direct  evidence  who  was  the  assailant,  threats  of  an  intention  to 
assail  are  some  evidence  of  an  assault  having  been  made  by  the 
one  who  made  the  threats."  Wilson  v.  State,  30  Fla.  242  \ 
Stokes  V.  People,  53  N.  Y.  174  ;  State  v.  Evans,  33  W.  Va.  426  ; 
Babcock  v.  People,  13  Colo.  515. 

The  defendant  may  show  that  he  fired  because  he  thought 
the  prosecuting  witness  was  advancing  with  a  gun,  though  it 
actually  was  an  umbrella,  and  to  show  ground  for  such  appre- 
hension he  may  prove  prior  threats  and  altercations.  Enlow 
V.  State,  154  Ind.  664  ;  Johnson  7-'.  State  (Miss.),  27  So.  880 
(similar). 

Previous  threats  of  the  deceased  admitted  as  a  link  in  the  evi- 
dence of  self-defence.  Harkness  v.  State  (Ala.),  30  So.  73  ; 
Bell  V.  State,  69  Ark.  148. 

Previous  threats  of  the  deceased  may  be  proved  as  tending  to 
show  that  the  accused  acted  in  self-defence.  Pritchett  v.  State, 
22  Ala.  39,  58  Am.  Dec.  50  ;  Williams  v.  People,  54  111.  422 
(threats  to  "  clean  out  and  whip"  the  defendant);  Brumley  v. 
State,  21  Tex.  App.  222  (threats  to  kill)  ;  Ball  v.  State,  29  Tex. 
App.  107  (same). 

Threats  by  the  deceased  against  defendant  because  of  slan- 
ders published  by  the  latter  may  be  proved.  State  v.  Bartlett, 
170  Mo.  658,  59  L.  R.  A.  756. 

Defendant  may  prove  threats  of  the  deceased  to  kill  him,  and 
that  he  sent  a  third  party  to  the  deceased  to  effect  a  compromise. 
Everett  v.  State,  30  Tex.  App.  68 2. 

On  the  issue  of  self-defence  the  accused  may  show  prior  threats 
of  the  deceased  known  to  him,  the  existence  of  a  grudge,  and 
prior  assaults  by  the  deceased  on  defendant.  State  v.  Scott,  24 
Kan.  68  ;  Rippy  v.  State,  39  Tenn.  217. 


237  ^'  AMERICAN   NOTES. 

Uncommunicated  Threats  of  Deceased. 

Threats  of  the  deceased  that  had  not  been  communicated  to 
the  defendant  are  not  admissible  to  show  that  he  had  a  reason- 
able apprehension  of  danger,  but  they  may  be  admissible  to  show 
the  state  of  mind  and  intentions  of  the  deceased.  State  v.  Faile, 
43  S.  C.  52  ;  State  v.  Gushing,  14  Wash.  527,  53  Am.  St.  Rep. 
883  ;  State  v.  Evans,  33  W.  Va.  417  ;  State  v.  Vaughan,  22  Nev. 
285;  State  V.  Fisher,  33  La.  Ann.  1344;  State  v.  Elliott,  45 
Iowa,  486. 

Evidence  of  previous  threats  on  the  part  of  the  deceased  against 
the  defendant  is  admissible  to  corroborate  evidence  indicating 
that  the  deceased  was  the  assailant.  Lester  v.  State,  37  Fla.  382  ; 
Monroe  v.  State,  5  Ga.  85  ;  Prine  v.  State,  73  Miss.  838  ;  State 
V.  Harrod,  102  Mo.  590;  Stokes  v.  People,  53  N.  Y.  164.  Such 
evidence  is  not  admissible  where  there  is  no  doubt  that  the  de- 
fendant was  the  aggressor,  or  where  he  himself  invited  the  fight. 
State  V.  Alexander,  66  Mo.  148  ;  Mealer  v.  State,  32  Tex.  Cr.  R. 
102;  Robert  v.  State,  68  Ala.  515;  Steele  v.  State,  2)2)  Fl^- 
348  ;  State  v.  Wilson,  43  La.  Ann.  840. 

Evidence  of  previous  threats  on  the  part  of  the  deceased  is 
not  admissible  when  there  is  not  evidence  to  show  that  he  did 
any  act  indicating  his  intention  to  carry  out  the  threats.  Jenkins 
V.  State,  80  Md.  72  ;  State  v.  Kenyon,  18  R.  L  217  ;  People  v. 
Campbell,  59  Cal.  243,  43  Am.  Rep.  257;  Harris  v.  State,  47 
Miss.  318  ;   Leigh  v.  People,  113  111.  372. 

Proof  of  former  difficulties  and  ill-feeling  between  the  deceased 
and  the  defendant  cannot  be  admitted  in  evidence  when  there 
is  absolutely  no  evidence  to  show  that  the  defendant  may  have 
acted  in  self-defence.     Rutledge  v.  State,  88  Ala.  85. 

Self-Defence —  Character  of  Deceased. 

The  character  of  the  deceased  in  cases  of  homicide  is  some- 
times admitted. 

In  Williams  v.  Fambro,  30  Ga.  233,  the  deceased  was  a  slave, 
and  the  defendant  claimed  that  he  was  killed  while  acting  insub- 
ordinately.  Evidence  to  show  the  previous  insubordinate  char- 
acter of  the  slave  was  admitted.  State  v.  Spendlove,  44  Kan.  r, 
holds  that  where  there  is  doubt  as  to  whether  the  defendant  01 


AMERICAN   NOTES.  237  Z 

the  deceased  was  the  aggressor,  such  character  evidence  is 
admissible. 

In  Copeland  v.  State,  41  Fla,  320,  character  for  "  general  cussed- 
ness"  was  excluded.  See  also,  Com.  v.  Haskins  (Ky.),  35  S.  W. 
284  ;  Fields  v.  State,  47  Ala.  603  ;   People  v.  Murray,  10  Cal.  309. 

The  conduct  of  the  deceased  at  the  time  of  the  homicide  is 
to  be  construed  with  reference  to  his  character  as  theretofore 
known,  and  hence  such  character  is  admissible.  Pritchett  v. 
State,  22  Ala.  39,  58  Am.  Dec.  250. 

Defendant  may  show  that  deceased  had  just  lost  money  to 
him  at  gambling  and  that  at  such  times  he  was  usually  a  danger- 
ous man.     State  v.  Hunter  (Iowa),  92  N.  W.  872. 

The  dangerous  character  of  the  deceased  is  immaterial  where 
the  defendant  denies  the  killing  altogether.  Manning  v.  State, 
79  Wis.  178. 

To  show  self-defence  where  the  defendant  is  charged  with 
assault  with  intent  to  kill,  he  may  prove  the  dangerous  character 
of  the  prosecuting  witness.     Upthegrove  z'.  State,  37  Ohio  St.  662. 

The  deceased  may  be  shown  to  have  been  a  dangerous  and 
powerful  man  where  the  issue  is  self-defence.  Brownell  v.  People, 
38  Mich.  732  ;  State  v.  Floyd,  51  N.  C.  392. 

The  character  of  the  deceased  may  be  admissible  in  evidence 
because  certain  acts  and  motions  on  the  part  of  a  man  known  to 
be  dangerous  justify  a  much  greater  apprehension  of  danger  and 
much  more  sudden  steps  to  prevent  such  danger,  than  the  same 
acts  on  the  part  of  other  men.  Pritchett  v.  State,  22  Ala.  39, 
58  Am.  Dec.  250  ;  Perry  ik  State,  94  Ala.  25  ;  State  v.  Keefe,  54 
Kan.  197. 

Where  the  defendant,  charged  with  homicide,  has  given  evi- 
dence to  show  that  he  killed  the  deceased  because  there  was 
reasonable  ground  to  fear  danger,  he  may  prove  the  violent  and 
dangerous  character  of  the  deceased.  Nichols  v.  People,  23 
Hun,  165  ;  State  v.  Graham,  6r  Iowa,  608  ;  State  v.  Downs,  91 
Mo.  19  ;  Williams  v.  State,  74  Ala.  18  ;  Marts  v.  State,  26  Ohio 
St.  162  ;  Williams  v.  State,  14  Tex.  App.  102,  46  Am.  Rep.  237  ; 
Smith  V.  U.  S.,  161  U.  S.  85. 

At  least  he  may  prove  the  dangerous  character  of  the  deceased 
where  he  knew  of  such  dangerous  character  and  the  deceased  did 
some   overt   act  indicating    his    purpose  to   attack,     Hudson  v. 


2377  AMERICAN   NOTES. 

State,  6  Tex.  App.  565,  32  Am.  Rep.  593;  State  v.  Nash,  45 
La.  .\nn.  1137;  Smitii  7'.  U.  S.,  161  U.  S.  85  ;  State  v.  Nett,  50 
Wis.  524. 

Evidence  of  the  turbulent  character  of  the  deceased  may  be 
admissible  on  the  question  of  self-defence.  Alexander  v.  Com., 
105  Pa.  I. 

Defendant  may  prove  the  character  of  the  deceased  as  a  dan- 
gerous man.     Jenkins  v.  State,  80  Md.  72. 

After  showing  that  the  deceased  was  intoxicated  when  killed, 
the  defendant  may  show  that  the  deceased  was  dangerous  when 
drunk.     State  v.  Manns  (\V.  Va.),  37  S.  E.  613. 

Where  the  accused  claimed  self-defence,  he  was  not  allowed  to 
show  that  during  a  previous  quarrel  the  deceased  had  armed  him- 
self with  an  ice-pick,  for  the  purpose  of  showing  deceased  to  have 
been  a  dangerous  character.     State  v.  Mims,  36  Ore.  315. 

Where  the  defendant  shot  the  deceased  while  the  latter  was 
attacking  with  his  fists,  it  is  not  competent  to  show  that  the 
deceased  was  a  trained  boxer  on  the  issue  of  self-defence.  State 
V.  Talmage,  107  Mo.  543. 

/deputation  for  Carrying    Weapons. 

Where  deceased  spat  in  defendant's  face  and  started  to  draw 
a  pistol  before  defendant  fired,  it  may  be  shown  that  deceased 
was  reputed  to  use  deadly  weapons  in  fights.  State  v.  Ellis,  30 
Wash.  369. 

The  defendant  has  a  right  to  show  that  the  man  he  killed  was 
generally  reputed  to  carry  dangerous  weapons,  where  the  issue  is 
self-defence.     Glenewinkel  v.  State  (Tex.),  61  S.  W.  123. 

On  the  issue  of  self-defence  the  defendant  may  show  that  the 
deceased  was  in  the  habit  of  carrying  weapons,  and  that  he  had 
knowledge  of  such  habit.  Wiley  v.  State,  99  Ala.  146;  State  v. 
Graham,  61  Iowa,  608;  Riley  v.  Com.,  94  Ky.  266;  King  v. 
State,  65  Miss.  576,  7  Am.  St.  R.  681.  But  if  the  defendant 
had  no  such  knowledge  before  the  homicide  he  cannot  prove  the 
fact.     Garner  v.  State,  31  Fla.  170. 

Evidence  Required  before  Character  is  Admissible. 

Evidence  of  the  dangerous  character  of  the  deceased  is  not 
admissible  to  indicate  the  possibility  that  the  defendant  acted  in 


AMERICAN  NOTES.  2^:^"]  k 

self-defence  unless  that  possibility  has  already  been  indicated  by 
other  evidence.  Eiland  v.  State,  52  Ala.  322  ;  Jones  v.  People, 
6  Colo.  452,  45  Am.  Rep.  526  ;  Gardner  v.  State,  90  Ga.  310, 
35  Am.  St.  R.  202  ;  People  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec. 
i6z;  Abbott  z'.  People,  '^d  N.  Y.  460;  Com.  v.  Straesser,  153 
Pa.  451  ;  Walker  v.  State,  28  Tex.  App.  503;  Carle  v.  People, 
200  111.  494. 

Where  there  is  no  evidence  that  the  deceased  manifested  any 
intention  to  attack  the  defendant,  evidence  of  the  deceased's 
dangerous  character  is  not  admissible.  Cannon  v.  People,  141 
111.  270;  Lang  V.  State,  84  Ala.  i,  5  Am.  St.  R.  324;  Doyal  v. 
State,  70  Ga.  134;  State  7'.  Vallery,  47  La.  Ann.  182,  49  Am. 
St.  R.  363  ;  Irvin  v.  State,  43  Tex.  236  ;  State  v.  Harris,  59  Mo. 

550- 

The  dangerous  character  of  the  deceased  cannot  be  shown  in 
defence  where  the  deceaseei  did  nothing  whatever  to  excite  appre- 
hension on  defendant's  part.  State  v.  Haab,  105  Pa.  230;  State 
V.  Morrison  (W.  Va.),  3S  S.  E.  4S1  ;  Slate  v.  Madison  (W.  Va.), 
38  S.  E.  492  ;  State  v.  Napoleon,  104  Pa.  164. 

If  the  trial  judge  believes  the  evidence  in  support  of  the  claim 
of  self-defence  to  be  totally  unworthy  of  belief,  evidence  of  the 
dangerous  character  of  the  deceased  should  not  be  admitted. 
State  V.  Janvier,  37   La.  Ann.  644. 

But  if  the  evidence  affords  even  slight  ground  for  the  inference 
of  self-defence  it  is  error  to  exclude  the  evidence  of  deceased's 
character.     Garner  v.  State,  28  Fla.  113,  29  Am.  St.  R.  232. 

The  defendant  may  not  show  the  quarrelsome  character  of  the 
deceased  where  the  latter  was  killed  with  a  rock  while  running 
away  from  the  defendant.     Jackson  v.  Com.  (Va.),  36  S.  E.  487. 

In  State  v.  Rollins,  113  N.  C.  722,  it  was  held  that  the  danger- 
ous character  of  the  deceased  may  not  be  proved,  even  on  the 
issue  of  self-defence,  unless  it  be  shown  that  the  defendant  knew 
of  such  dangerous  character. 

"  It  is  well  and  generally  known  that  there  are  some  violent 
and  dangerous  men  in  this  country,  who  are  in  the  habit  of 
carrying  pistols,  belted  behind  them  and  in  their  pockets,  who 
never  think  of  fighting  in  any  other  way  than  with  deadly  weapons, 
who  are  expert  in  using  them,  and  who,  especially  when  intoxi- 
cated, bring  on  and  press  to  the  extreme  of  outrage  their  deadly 


237^  AMERICAN   NOTP:S. 

encounters  for  causes  and  provocations  that  would  be  regarded 
as  utterly  trivial  by  peaceable  men  ;  and  that  if  one  of  such  ])er- 
sons,  while  engaged  in  an  angry  altercation,  should  suddenly  step 
back  and  rapidly  throw  his  hand  behind  him,  it  might  readily  be 
understood  by  those  who  saw  it  to  mean  that  he  was  in  the  act 
of  drawing  a  pistol  to  use  it.  The  same  act  by  one  of  the  great 
mass  of  our  peaceable  citizens  who  are  not  in  the  habit  of  carry- 
ing weapons  would  suggest  no  such  thought,  and  in  such  case 
the  pistol  would  have  to  be  drawn  and  exhibited  before  any 
such  thing  would  be  conceived,  unless  there  had  been  some  very 
extraordinary  provocation. 

"  This  state  of  things  here  is  a  substantial  reality,  well  known  and 
ostensible  to  the  perception  of  every  one  at  all  familiar  with  the 
subject ;  and  men  act  upon  it,  and  are  compelled  to  act  upon  it, 
in  defending  themselves  from  deadly  assaults.  ...  It  may  be 
deduced  from  these  authorities  that  the  general  character  of  the 
deceased  for  violence  may  be  proved  when  it  would  serve  to 
explain  the  actions  of  the  deceased  at  the  time  of  the  killing  ; 
that  the  actions  which  it  would  serve  to  explain  must  first  be 
proved  before  it  would  be  admissible  as  evidence  ;  that  if  no 
such  acts  were  proved  as  it  would  serve  to  explain,  its  rejection 
when  offered  in  evidence  would  not  be  error  ;  and  that,  if  rejected 
when  a  proper  predicate  has  been  established  for  its  admission, 
it  is  held  to  be  error."     Horbach  v.  State,  43  Tex.  250. 

Character  of  Third  Parties. 

Where  the  defendant  claims  to  have  been  attacked  by  deceased 
and  a  third  party,  he  may  prove  the  dangerous  character  of  such 
third  party.     Tiffany  v.  Com.,  121  Pa.  165,  6  Am.  St.  R.  775. 

Where  during  a  fight  between  the  defendant  and  a  negro,  a 
third  party  was  killed,  the  defendant  may  show  the  tough  charac- 
ter of  the  negro,  and  the  State  may  rebut  the  testimony.  Warren 
V.  Com.,  99  Mass.  370. 

Defence  of  Another. 

Defendant  may  prove  that  the  deceased  and  third  parties  who 
were  assaulting  defendant's  brother  had  previously  made  threats. 
People  V.  Curtis,  52  Mich.  616. 


AMERICAN   NOTES.  237  m 

Where  defendant  claimed  that  the  deceased  was  about  to 
assault  defendant's  sister,  previous  threats  of  the  deceased  against 
the  sister  may  be  proved,  even  though  they  were  not  known  by 
the  defendant.  State  v.  Felker,  27  Mont.  451.  It  may  be 
shown  too  that  defendant  knew  of  other  assaults  made  by  the 
deceased  upon  the  woman  several  months  before.     Ibid. 

Defendant  cannot  testify  that  his  belief  was  that  the  deceased 
was  about  to  attack  defendant's  son ;  the  material  thing  is  the 
actual  ground  for  such  belief.     State  v.  Downs,  91  Mo.  19. 

Where  defendant  claims  that  he  was  protecting  his  wife,  the 
State  may  show  that  she  kept  a  house  of  prostitution  to  show 
that  deceased  may  have  been  there  for  a  purpose  not  felonious. 
People  V.  Pierson,  2  Idaho,  71,  3  Pac.  688. 


Rebuttal  of  Self-Defence. 

It  is  competent  for  the  State  to  show  threats  of  the  defendant 
to  rebut  his  claim  of  self-defence.     Bolzer  v.  People,  129  111.  112. 

The  State  may  show  all  the  circumstances  of  the  altercation, 
threats  made,  relative  size  and  strength  of  the  parties.  Palmore 
V.  State,  29  Ark.  248. 

The  State  may  show  in  rebuttal  that  there  was  no  great  dif- 
ference in  size  between  the  defendant  and  the  deceased.  Wilkins 
V.  State,  98  Ala.  i,  13  South.  312. 

Also  that  the  accused  is  larger  and  stronger  than  the  deceased. 
Hinch  V.  State,  25  Ga.  699. 

Where  defendant  had  shown  that  all  the  appearances  pointed 
to  danger  to  himself  from  the  deceased,  the  State  was  not  allowed 
to  show  in  rebuttal  that  the  deceased  was  on  a  peaceful  errand 
past  defendant's  house.  Erumley  v.  State,  21  Tex.  App.  222, 
17  S.  W.  140. 

To  rebut  the  claim  of  self-defence  the  State  cannot  prove 
statements  of  the  deceased  that  the  trouble  was  over  and  that  he 
did  not  want  a  gun,  when  such  statements  were  not  known  by 
the  defendant.  They  did  not  lessen  the  appearance  of  danger 
to  him.     May  v.  Com.,  3  Ky.  Law  Rep.  474. 

The  State  may  prove  the  peaceable  character  of  the  deceased 
to  rebut  defendant's  claim  of  self-defence.  Fields  v.  State,  134 
Ind.  46. 


237^'  AMERICAN   NOTES. 

Intoxication  as  a  Defence. 

Intoxication  admitted  to  prove  incapacity  to  commit  homicide. 
State  V.  Home,  9  Kan.  128. 

Excessive  use  of  morphine  and  whiskey  admitted  to  show 
general  criminal  irresponsibility.  Franklin  v.  Franklin,  90  Tenn. 
49. 

As  negativing  the  existence  of  an  intent,  the  defendant  may 
show  that  he  was  drunk  (Leroy  v.  State  (Ala.),  25  So.  247),  or 
he  may  sliow  that  he  was  ignorant  of  facts  which  made  his  act 
criminal.     Farrell  v.  State,  32  Ohio  St.  456. 

The  defendant  may  prove  his  incapacity  to  commit  the  crime 
charged  ;  c.  g.  illness,  paralysis,  intoxication.  "  In  such  case  the 
intoxication  is  not  shown  for  the  purpose  of  excuse  or  mitigation 
of  the  offence  charged,  but  as  evidence  tending  to  show  that  he 
was  not  jKesent  and  did  not  commit  the  acts  constituting  the 
offence.  Evidence  of  this  kind  would  have  but  little  weight 
against  direct  evidence  showing  the  actual  presence  of  the  accused 
at  the  time  and  place  when  and  where  the  crime  was  committed  ; 
but  certainly  in  the  absence  of  any  such  direct  evidence,  the  ac- 
cused may  give  in  evidence  any  fact  which  would  have  a  natural 
tendency  to  render  it  improbable  that  he  was  there  and  did  the 
acts  complained  of;  and  the  fact  that  drunkenness  was  the  thing 
which  tended  to  prove  such  improbability  can  make  no  differ- 
ence."    Ingalls  V.  State,  48  Wis.  647. 

Experiments  to  Show  Impossibility. 

Where  it  was  shown  that  after  the  time  of  an  offence  the  de- 
fendant caught  up  with  and  passed  three  wagons,  he  should  be 
permitted  to  give  evidence  of  experiments  indicating  that  if  de- 
fendant had  committed  the  offence  he  could  not  have  passed  the 
wagons.     Clark  v.  State  (Tex,),  40  S.  W.  992. 

Evidence  that  a   Third  Person  Did  the  Act. 

It  seems  that  the  defendant  may  not  show  that  another  has 
previously  been  convicted  of  the  same  crime.  State  v.  Smarr, 
121  N.  C.  669;  Kazer  v.  State,  5  Ohio,  280  (conviction  of  an- 
other for  the  same  arson). 

The  confession  of  a  third  person  that  he  committed  the  crime 


AMERICAN   NOTES.  237  0 

in  question  cannot  be  proved  by  the  accused,  for  the  reason  that 
the  law  excludes  it  as  hearsay. 

The  defendant  may  give  evidence  indicating  that  the  crime 
charged  was  committed  by  another,  and  may  then  show  that  such 
other  person  had  a  motive  to  commit  the  crime  and  what  it  was. 
Green  v.  State,  154  Ind.  655. 

In  Com.  V.  Felch,  132  Mass.  22,  the  defendant,  charged  with 
an  attempt  at  abortion  causing  death,  was  not  allowed  to  prove 
that  the  deceased  had  told  a  witness  that  she  was  pregnant  by 
one  not  the  defendant,  and  that  if  that  one  did  not  procure  an 
abortion  she  would  do  so  herself.  But  see  Com.  v.  Trefethen, 
157  Mass.  180. 

The  defendant  may  show  that  the  crime  was  committed  by  an- 
other, even  though  that  other  has  already  been  acquitted  (People 
V.  Mitchell,  100  Cal.  328),  and  the  evidence  offered  is  admissible 
even  though  it  would  not  be  sufficient  to  prove  such  other 
person's  guilt  beyond  a  reasonable  doubt  (Sidney  v.  Com.,  i  Ky. 
Law  Rep.  120)  ;  but  the  mere  fact  that  another  has  been  indicted 
for  the  crime  is  not  admissible.     Taylor  v.  Com.,  90  Va.  109. 

Any  evidence  tending  to  show  that  another  than  the  defend- 
ant committed  the  crime  is  competent.  Synon  v.  People,  188 
111.  609. 

Bastardy  Cases. 

In  bastardy  cases  the  defendant  may  show  intercourse  by  the 
woman  with  other  men  at  about  the  time  conception  must  have 
taken  place.  State  v.  Seevers,  108  Iowa,  738;  Eddy  v.  Gray, 
4  Allen,  435;  State  z'.  Warren,  124  N.  C.  807;  Humphrey  z/. 
State,  78  Wis.  571  ;  Benham  v.  Richardson,  91  Ind.  82, 

Motives  of  Third  Persons. 

That  a  third  person  had  a  motive  to  do  the  act  of  which  the 
defendant  is  accused  is  sometimes  admitted  and  sometimes  not. 
It  would,  of  course,  have  some  v^^eight  in  the  defendant's  favor. 

Cases  admitting  such  evidence  :  Crawford  v.  State,  12  Ga.  142  ; 
State  V.  Johnson,  30  La.  Ann.  921  ;  contra,  Com.  v.  Abbott, 
130  Mass.  475;  Tatum  v.  State,  131  Ala.  32;  Horn  v.  State 
(Wye),  73  Pac.  705. 

The  defendant  cannot  prove  that  others  had  a  motive  to  do  the 


237/  AMERICAN  NOTES. 

act  cliarged,  unless  he  in  other  ways  connects  them  with  the  act. 
Tatuni  V.  State  (Ala.),  31  So.  369. 

The  defendant  may  prove  that  another  had  a  motive  to  commit 
the  crime.     Sawyers  v.  State,  '&2>  l^i'^'i-  694. 

Where  there  is  no  direct  evitlence  that  the  defendant  struck 
the  fatal  blow,  he  may  show  that  the  deceased  had  had  a  quarrel 
with  another  about  the  time  of  the  homicide.  Crawford  v.  State, 
12  Ga.  142  ;  State  v.  Johnson,  30  La.  Ann.  921. 

It  is  immaterial  that  others  had  motives  to  commit  the  crime, 
where  it  is  shown  that  they  had  no  opportunity.  Means  v.  State, 
10  Tex.  App.  16,  38  Am.  Rep.  640. 

The  defendant  cannot  show  that  others  had  a  motive  to  commit 
the  crime  in  question  unless  he  further  shows  that  they  had  the 
opportunity.     Ogden  v.  State  (Tex.),  58  S.  W .  1018, 

Threats  of  Third  Persons. 

Courts  generally  do  not  allow  the  accused  to  introduce  evi- 
dence that  third  persons  had  threatened  to  do  the  act  in  ques- 
tion ;  although  it  cannot  be  doubted  that  proof  that  a  third 
person  did  the  act  in  question  excludes  the  conclusion  that  the 
accused  did  it ;  and  if  threats  by  the  accused  tend  to  show  that  he 
did  the  act,  then  why  should  not  threats  of  third  persons  tend  to 
show  that  they  did  it?  The  reasons  given  for  excluding  such  tes- 
timony are  various.  See  State  v.  Beaudet,  53  Conn.  543  ;  School- 
craft V.  People,  117  111.  271;  State  v.  Fletcher,  24  Ore.  295; 
State  V.  Crawford,  99  Mo.  74;  Carlton  v.  People,  150  111.  iSi. 
But  see  Alexander  v.  U.  S.,  138  U.  S.  353,  and  Worth  v.  R.  R. 
Co.,  51  Fed.  Rep.  171,  where  such  evidence  was  admitted. 

The  defendant  cannot  show  that  others  had  threatened  to  kill 
the  deceased  in  the  absence  of  any  other  evidence  tending  to 
connect  such  others  with  the  homicide  in  question  (Woolfolk  v. 
State,  81  Ga.  551  ;  State  v.  Mann,  83  Mo.  589  ;  State  v.  Duncan, 
28  N.C.  236  ;  Henry  v.  State  (Tex.),  30  S.  W.  802)  ;  but  in  con- 
nection with  such  other  evidence,  threats  by  the  third  persons 
may  be  proved  (Morgan  v.  Com.,  77  Ky.  106)  ;  also  where  the 
evidence  against  the  defendant  is  entirely  circumstantial.  Murphy 
V.  State,  36  Tex.   Cr.   Rep.   24;   Leonard  v.  Terr.,  2   Wash.  T. 

381. 

In  State  v.  Davis,  77  N.  C.  483,  the  defendant  was  not  allowed 


AMERICAN   NOTES.  237  q 

to  show  that  a  third  person  went  toward  the  home  of  the  de- 
ceased, armed  and  threatening  to  kill  the  deceased.  See  also 
State  V.  Lambert,  93  N.  C.  618. 

In  Alexander  v.  U.  S.,  138  U.  S.  353,  the  defendant,  charged 
with  homicide,  was  allowed  to  show  that  at  the  time  the  deceased 
disappeared  a  party  of  armed  men  were  looking  for  him  with 
threats  to  kill  him  for  eloping  with  a  married  woman. 

Suicide. 

The  defendant  may  give  in  evidence  other  possible  hypotheses 
upon  which  the  act  charged  may  be  explained.  He  may  show 
that  the  deceased  may  himself  have  inflicted  the  wound  causing 
death.     State  v.  Lee,  65  Conn.  265. 

The  absence  of  motive  on  the  part  of  the  defendant  may  be 
considered  by  the  jury  as  supporting  the  claim  that  the  deceased 
shot  himself  after  wounding  the  defendant.  Smith  v.  State 
(Neb.),  85  N.  W.  49. 

Deceased'' s  Intention  to  Commit  Suicide. 

The  defendant  may  show  that  the  deceased  had  planned  to 
commit  suicide,  for  that  would  make  it  more  or  less  probable 
that  the  deceased  was  not  killed  by  the  defendant.  "  It  may  be 
true  that  an  unmarried  woman  pregnant  with  child,  if  she  has  an 
intention  to  commit  suicide,  does  not  always  carry  that  intention 
into  effect,  although  she  have  an  opportunity  ;  but  it  is  impossible 
to  say  that  the  actual  existence  of  such  an  intention  does  not  tend 
to  throw  some  light  upon  the  cause  of  death  of  such  a  woman 
when  found  dead  under  circumstances  not  inconsistent  with  the 
theory  of  suicide."  Com.  v.  Trefethen,  157  Mass.  180;  State  v. 
Asbell,  57  Kan.  398. 

The  defendant  in  homicide  may  prove  a  declaration  of  the 
deceased  that  it  was  his  intention  to  commit  suicide,  where  the 
circumstances  are  not  inconsistent  with  that  manner  of  death. 
Com.  V.  Trefethen,  157  Mass.  180,  24  L.  R.  A.  235  ;  People  v. 
Gehmele,  i  Sheld.  (N.  Y.)  251;  Blackburn  z/.  State,  23  Ohio 
St.  146  ;  Boyd  v.  State,  82  Tenn.  161. 

Cases  where  such  evidence  was  not  admitted.  State  v.  Pun- 
shon,  124  Mo.  448,  133  Mo.  44;  State  z/,  Fitzgerald,  130  Mo. 
407. 


237  A-  AMERICAN   NOTES. 

And  melancholy  statements  by  the  deceased  that  he  was  sick 
of  life  are  not  admissible  where  there  is  no  claim  that  he  com- 
mitted suicide.     State  v.  Foamier,  68  Vt.  262. 

Motives  for  Suicide. 

The  defendant  may  show  that  the  deceased  had  a  motive  for 
suicide,  as  that  deceased  was  an  unmarried  woman  and  pregnant. 
Spencer  Cowper's  Trial,  13  How.  St.  Tr.  116O;  Blackburn  v. 
State,  23  Ohio  St.  165. 

Complaint. 

"  In  criminal  cases  the  conduct  of  the  person  against  whom 
the  offence  is  said  to  have  been  committed,  and  in  {particular  the 
fact  that  soon  after  the  offence  he  made  a  complaint  to  persons 
to  whom  he  would  naturally  complain,  are  deemed  to  be  relevant. 
The  terms  of  the  complaint  are  irrelevant;  except  that  in  a  case 
of  rape  or  other  sexual  offence  where  the  consent  of  the  person 
against  whom  the  offence  was  committed  to  the  act  charged  as 
an  offence  is  in  issue,  the  terms  of  the  complaint  are  relevant  as 
showing  that  the  conduct  of  such  person  was  consistent  with  the 
denial  of  consent."     Stephen's  Dig.  Evid.,  Art.  8. 

The  American  authorities  generally  state  the  rule  that  the  fact 
of  complaint  is  relevant  as  applying  only  to  prosecutions  for  rape 
and  other  offences  against  women.  American  Law  Review,  vol. 
xiv,  pp.  829-838;  Haynes  v.  Com.,  28  Gratt.  (Va.)  942. 

In  rape  cases  the  fact  of  complaint  may  be  shown.  State  v. 
Carroll,  67  Vt.  477;  Com.  v.  Phillips,  162  Mass.  504  ;  Stevens. 
V.  People,  158  Ill.iii  ;  People  v.  Stewart,  97  Cal.  238  ;  Cross  v. 
State,  132  Ind.  65  ;  Parker  v.  State,  67  Md.  329;  Lee  v.  State, 
74  Wis.  45  ;  Johnson  v.  State,  17  Ohio,  593  ;  Oleson  v.  State,  11 
Neb.  276,  38  Am.  Rep.  366. 

A  delay  of  weeks  or  months,  if  explained,  does  not  render 
the  fact  of  complaint  inadmissible  (State  v.  Wilkins,  66  Vt.  i)  ; 
nor  does  that  of  more  than  a  year ;  it  simply  affects  the 
weight  of  the  evidence.  State  v.  Byrne,  47  Conn.  465,  466, 
467. 

The  conduct  of  a  woman  subsequent  to  the  commission  of  an 
alleged  abortion  may  be  shown  in  a  prosecution  against  one  for 
performing  the  abortion.     State  v.  Lee,  69  Conn.  196. 


AMERICAN   NOTES.  237.? 

Evidence  of  constancy  in  accusation  is  admissible.  State  v. 
De  Wolf,  8  Conn.  99. 

Terms  of  Complaint  Irrelevant. 

The  terms  of  the  complaint  are  irrelevant.  State  v.  Knapp, 
45  N.  H.  148,  155. 

But  in  prosecutions  for  offences  against  women  the  terms  of 
the  complaint  are  considered  relevant.  State  v.  Kinney,  44 
Conn.  153,  26  Am.  Rep.  436  ;  Burt  ?'.  State,  23  Ohio  St.  394; 
Hill  V.  State,  5  Lea  (Tenn.),  725.  See  also  Benton  v.  Starr, 
58  Conn.  285.  So  where  the  complainant  is  a  girl  of  tender 
years.     Harmon  v.  State,  70  Wis.  448. 

"The  count  upon  which  Lillyman  (R.  v.  Lillyman  (1896), 
2  Q.  B.  167)  was  substantially  tried,  and  upon  which  alone  {ibid. 
at  p.  170)  he  was  convicted,  charged  that  he  unlawfully  at- 
tempted to  have  carnal  knowledge  of  a  girl  under  sixteen  and 
over  thirteen.  The  question  of  her  consent  was  therefore  imma- 
terial (Criminal  Law  Amendment  Act,  1S85,  §  5,  by  which  the 
offence  was  created).  In  giving  her  evidence,  however,  the  girl 
asserted  that  she  did  not  consent  to  the  attempt.  Sir  Henry 
Hawkins  admitted  evidence  of  the  terms  of  a  complaint  made  by 
the  girl  to  her  mistress,  in  the  absence  of  the  prisoner,  very 
shortly  after  the  commission  of  the  acts  charged.  The  prisoner 
was  convicted,  and  the  case  reserved  on  the  question  whether 
this  evidence  was  admissible.  The  Court  (Lord  Russell,  C.  J., 
Pollock,  B.,  Hawkins,  Cave,  and  Wills,  JJ.)  affirmed  the  con- 
viction. The  ground  of  the  decision  is  clearly  stated  in  two 
passages  of  the  judgment  of  the  Court,  delivered  by  Sir  Henry- 
Hawkins.  '  It  (the  complaint)  is  clearly  not  admissible  as  evi- 
dence of  the  facts  complained  of.  .  .  .  The  complaint  can  only 
be  used  as  evidence  of  the  consistency  of  the  conduct  of  the 
prosecutrix  with  the  story  told  by  hei  in  the  witness-box,  and  as 
being  inconsistent  with  her  consent  to  that  of  which  she  com- 
plains '  {ibid,  at  p.  170).  *  The  evidence  is  admissible  only  upon 
the  ground  that  it  was  a  complaint  of  that  which  is  charged 
against  the  prisoner,  and  can  be  legitimately  used  only  for  the 
purpose  of  enabling  the  jury  to  judge  for  themselves  whether  the 
conduct  of  the  woman  was  consistent  with  her  testimony  on  oath 
given  in   the  witness-box  negativing   her  consent,  and   affirming 


2  37^  AMERICAN   NOTES. 

that  the  acts  romplained  of  were  against  her  will,  and  in  accord- 
ance with  the  conduct  they  would  expect  in  a  truthful  woman 
under  the  circumstances  detailed  by  her'  {H>iii.  at  p.  177).  In 
other  words,  tlic  judgment  decides  that  where  a  woman  has  made 
a  statement  as  to  her  own  consent,  which  in  the  case  before  the 
Court  happened  to  be  perfectly  irrelevant,  the  details  of  her 
complaint  may  be  admitted  only  because  they  may  serve  as  a 
test  of  the  credibility  which  ought  to  attach  to  the  relevant  parts 
of  her  testimony."     Stephen's  Dig.  Evid.,  Appendix,  Note  V. 

Character  of  the  Prosecutrix  in  Rape  and  Similar  Offences. 

"  When  a  man  is  prosecuted  for  rape  or  an  attempt  to  ravish, 
it  may  be  shown  that  the  woman  against  whom  the  offence  was 
committed  was  of  a  generally  immoral  character,  although  she  is 
not  cross-examined  on  the  subject.  The  woman  may  in  such  a 
case  be  asked  whether  she  has  had  connection  with  other  men, 
but  her  answer  cannot  be  contradicted.  She  may  also  be  asked 
whether  she  has  had  connection  on  other  occasions  with  the 
prisoner,  and  if  she  denies  it  she  may  be  contradicted."  Stephen's 
Dig.  Evid.,  Art.  134. 

The  character  of  the  prosecutrix  for  chastity  in  rape  cases  is 
relevant  on  the  issue  of  consent  to  the  act  and  is  admissible  in 
evidence.  This  applies  also  to  prosecutions  for  other  similar 
offences.  People  v.  Johnson,  106  Cal.  289;  Seals  z;.  State,  114 
Ga.  518;  Shirwin  v.  People,  69  111.  56;  Anderson  v.  State,  104 
Ind.  471  ;  Com.  v.  Harris,  131  Mass.  336  ;  O'Blemis  v.  State,  47 
N.  J.  L.  279  ;  Gore  v.  Curtis,  81  Me.  403  (solicitation  to  commit 
adultery)  ;  Gross  v.  Brodrecht,  24  Oat.  App.  687  (indecent 
assault)  ;  Com.  v.  McDonald,  no  Mass.  405  ;  Bedgood  v.  State, 
1 15  Ind.  275. 

It  may  be  shown  that  the  prosecutrix  was  a  prostitute.  Rice  v. 
State,  35  Fla.  236;  People  v.  McLean,  71  Mich.  310;  Woods  v. 
People,  55  N.  Y.  515. 

In  actions  for  seduction,  and  the  like,  the  woman's  bad  char- 
acter as  to  chastity  may  be  shown.  Van  Storch  v.  Griffin,  71  Pa. 
240. 

In  action  for  seduction  the  good  reputation  of  the  girl  in  one 
place  may  be  proved  to  rebut  evidence  of  her  bad  reputation 
in  another  place.     Milliken  v.  Long,  188  Pa.  411. 


AMERICAN   NOTES.  237  U 

Particular  Acts  of  Unchastity. 

On  this  subject  there  is  a  contlict.  The  following  cases  hold 
that  particular  acts  of  unchastity  with  others  cannot  be  proved. 
Gore  V.  Curtes,  81  Me.  403;  Com.  v.  Harris,  131  Mass.  336; 
Com.  V.  Regan,  105  Mass.  593;  People  v.  McLean,  71  Mich. 
307  ;  Shartzer  v.  State,  63  Md.  149  \  Rice  v.  State,  35  Fla.  236; 
Richie  v.  State,  58  Ind.  355  ;  contra.  State  v.  Hollenbeck,  67 
Vt.  34;  Hoffman  v.  Kemerer,  44  Pa.  St.  453;  Doyle  v.  Jessup, 
29  111.  460;  Smith  V.  Yaryan,  69  Ind.  445  ;  People  v.  Benson, 
6  Cal.  221  ;  State  v.  Forstner,  43  N.  H.  89  ;  State  v.  Knapp,  45 
N.  H.  148;  People  v.  Abbot,  19  Wend.  194;  R.  v.  Martin, 
6  C.  &  P.  562. 

When  woman  is  under  age  of  legal  consent,  such  evidence  in 
rape  cases  has  been  held  incompetent.  People  v.  Johnson,  to6 
Cal.  289;  People  v.  Abbott,  97  Mich.  484;  State  v.  Duffey,  128 
Mo.  549. 

Explanations  of  Suspicions  Circumstajices. 

Where  it  was  shown  that  several  sizes  of  shot  were  found  in  the 
body  of  the  deceased  and  also  in  the  defendant's  gun,  the  defend- 
ant was  allowed  to  prove  that  the  use  of  such  shot  in  that 
manner  was  common  in  the  neighborhood.  Cooper  v-  State, 
23  Tex.  343. 

The  defendant  is  allowed  to  give  in  evidence  other  hypotheses 
to  explain  incriminating  circumstances.  He  may  show  a  reason 
for  carrying  a  gun  (People  v.  Malaspina,  57  Cal.  628)  ;  or  the 
reason  for  the  possession  of  strychnine  (People  v.  Cuff.,  122  Cal. 
589)  ;  or  a  reason  for  going  to  the  locality  of  the  crime.  State  v. 
English,  67  Mo.  136. 

In  rebuttal  of  evidence  of  facts  claimed  to  show  motive  or 
state  of  mind,  the  accused  may  show  what  led  up  to  those  facts. 
Rufer  z;.  State,  25  Ohio  St.  464;  Stater;.  Spring,  Tappan,  167. 

The  defendant  in  Granger  v.  State  (Tex.),  31  S.  W.  671,  was 
allowed  to  explain  the  fact  that  his  gun  had  been  recently  fired, 
by  saying  that  he  had  shot  a  hawk,  which  he  produced.  He  was 
convicted,  nevertheless. 

Where  the  defendant,  charged  with  forgery  of  a  check,  testifies 
that  he  won  it  in  a  poker  game,  he  may  be  asked,  on  cross- 
examination,  whether  he  told  that  story  to  the  officers  when  "he 


21"]  V  AM  KRICAN   NOTES. 

was  first  accused  of  the  crime,  and  it  may  be  shown  that  he  did 
not.     People  v.  Dole,  122  Cal.  4S6,  68  Am.  St.  Rep.  50. 

The  defenilant  may  show  that  the  reason  he  was  encased  in 
steel  armor  and  had  four  jiistols  was  that  two  organizations  of 
which  deceased  was  a  member  had  thrcatenetl  defendant's  life. 
People  V.  Lee  Chuck,  74  Cal.  30. 

Where  the  State  has  given  evidence  that  the  defendant  bought 
a  gun  to  kill  the  deceased,  he  may  show  that  he  had  been  threat- 
ened and  hence  bought  it  to  defend  himself.  State  v.  Doherty, 
72  Vt.  381. 

The  defendant  may  show  that  in  buying  a  gun  he  was  prepar- 
ing, not  to  make  an  attack,  but  to  resist  one.  State  v.  Claire,  41 
La.  Ann.  191 ;  Long  v.  State,  52  Miss.  23. 

In  a  murder  case,  it  is  error  not  to  allow  the  defendant  to  ex- 
plain how  he  happened  to  have  a  pistol  with  him.  Aaron  v. 
State,  31  Ga.  167. 

The  defendant  charged  with  a  homicide  and  shown  to  have  had 
blood  stains  on  his  face  and  shirt,  may  prove  that  the  day  before 
the  homicide  occurred  he  asked  a  witness  for  his  handkerchief 
because  he  had  the  nosebleed.  Murphy  v.  State,  36  Tex.  Cr.  Rep. 
24,  35  S.  W.  174. 

Where  one  accused  of  arson  had  previously  removed  his  own 
goods  from  the  house,  it  is  error  to  exclude  his  explanation  for 
such  removal.     People  v.  Fournier  (Cal.),  47  Pac.  1014. 

Evading  Arrest  Explained. 

The  defendant  may  explain  his  evasion  of  arrest  consistently 
with  his  innocence.  Li  France  v.  State,  68  Ark.  529,  533,  it  is 
said  :  "Now,  the  evidence  in  this  case  shows,  we  think,  that  this 
defendant  and  those  charged  with  him  did  not  intend  permanently 
to  avoid  arrest.  They  stated  that  they  endeavored  to  avoid  arrest 
at  the  time,  for  the  reason  that  they  could  not  give  a  bond,  and 
did  not  wish  to  lie  in  jail  until  they  could  have  a  trial,  but  in- 
tended to  surrender  soon.  The  fact  that  they  continued  to  remain 
in  the  neighborhood  of  their  homes  until  arrested,  although  they 
could  easily  have  left  the  State,  seems  to  support  this  statement. 
Although  this  endeavor  to  avoid  arrest  was  a  circumstance  against 
defendant  calculated  to  arouse  a  suspicion  that  he  was  guilty, 
yet,  taken   in  connection  with  the   explanation  given  for  it,  we 


AMERICAN   NOTES.  237  zc; 

think  it  hardly  sufficient  to  justify  the  conviction,  when  standing 
alone  without  other  circumstance  to  connect  defendant  with 
the  crime." 

Flight  Explained. 

In  Tilley  v.  Com.,  90  Va.  99,  the  defendant  showed  that  he 
fled  the  day  after  the  murder  because  there  was  great  excitement 
at  the  inquest  and  he  was  in  great  danger  of  being  lynched,  that 
after  his  arrest  he  was  furnished  with  instruments  with  which  to 
escape,  and  that  he  turned  them  over  to  his  attorney. 

The  accused  may  offer  explanations  of  his  flight  or  concealment 
to  rebut  any  inference  therefrom  that  he  is  guilty.  In  Kennedy 
V.  Com.,  14  Bush,  346,  the  accused  gave  the  weak  explanation  that 
he  fled  because  the  jail  was  filthy ;  in  Batten  v.  State,  80  Ind. 
394,  it  was  fear  of  violence. 

The  defendant  may  rebut  the  inference  of  guilt  from  his  flight 
by  proving  that  he  fled  from  fear  of  summary  vengeance  by  the 
father  of  the  deceased.  But  a  witness  cannot  testify  that  "  the 
defendant  seemed  afraid  "  of  the  said  father,  Lewis  v.  State,  96 
Ala.  6,  10, 

And  he  may  explain  his  disappearance  from  the  inquest  to 
which  he  was  summoned.  In  Bailey  v.  State,  104  Ga.  530,  the 
Court  says  :  "  Doubtless  he  saw  that  he  was  suspected  at  the  in- 
quest, and  seeing  the  relatives  of  the  deceased  armed,  in  a 
moment  of  such  excitement  it  is  not  strange,  and  is  entirely  con- 
sistent with  the  theory  of  his  innocence,  that  he  should  have  en- 
deavored to  escape  from  such  an  atmosphere  of  danger." 

Explanatlofis  of  Possession  of  Another's  Property. 

Defendant  may  explain  the  possession  of  money  belonging  to 
another  by  evidence  that  he  found  it.  White  v.  State,  28  Tex. 
App.  71. 

The  defendant,  in  possession  of  animals  belonging  to  another, 
may  explain  by  evidence  that  he  took  the  property  under  the 
belief  that  it  was  his.  Evidence  that  a  brand  on  the  animal 
looked  like  the  brand  of  the  defendant  would  be  a  corroborative 
circumstance.  So  it  may  be  shown  that  herds  became  mixed  by 
accident,  or  that  bales  belonging  to  defendant  had  been  placed 
near  similar  bales  belonging  to  others,  or  that  two  animals  looked 
alike.     Randlez;.  State,  49  Ala.  14  (bales  of  cotton)  ;  Thurman  v. 


21"]  X  AMERICAN   NOTES. 

State,  33  Tex.  684  (hog)  ;  Misscldine  v.  State,  21  Tex.  App. 
335  (strong  resemblance  between  pigs)  ;  Minis  v.  State  (Tex.), 
32  S.  W.  540  (cow  mixed  with  a  herd)  ;  liroolis  v.  State  (Tex.), 
27  S.  W.  141   (brand  W.  B.  looked  like  W.  K.). 

Where  the  defendant  was  charged  with  larceny  of  a  steer,  and 
fresh  meat  was  found  in  his  possession,  he  may  show  that  this 
meat  came  from  another  steer  of  his  own.  But  even  so,  tiie  jury 
need  not  be  instructed  to  acquit,  if  they  find  such  evidence  of 
the  defendant  to  be  true.     State  v.  Minor  (Iowa),  77  N.  \V.  330. 

Defendant,  charged  with  the  larceny  of  animals  that  he  had 
driven  off  and  sold,  may  show  that  at  once  upon  discovering  the 
fact  he  had  sought  the  owner  and  offered  or  paid  liim  the  value 
of  the  animals  (Hall  v.  State,  34  Ga.  20S)  ;  or  that  he  returned 
the  property  itself.  Bennett  v.  State,  28  Tex.  App.  342  ;  Hicks 
V.  State  (Tex.),  47  S.  W.  1016. 

One  charged  with  larceny  may  prove  that  he  himself  put  the  offi- 
cers on  the  track  of  the  stolen  goods.    Pinkard  v.  State,  30  Ga.  757. 

Defendant,  accused  of  taking  a  package  of  tobacco,  and  hav- 
ing been  seen  in  possession  of  such  a  package,  may  explain  where 
he  got  it.     State  v.  Brundidge,  118  Iowa,  92. 

A  defendant  charged  with  the  larceny  of  property  may  show 
that  he  purchased  it.  The  truth  of  his  evidence  is  for  the  jury. 
Smith  V.  State,  24  Tex.  App.  290.  The  reasonableness  of  the 
defendant's  explanation  is  for  the  jury.  State  v.  Mandich  (Nev.), 
54  Pac.  516. 

In  explaining  the  possession  of  recently  stolen  goods,  the  de- 
fendant may  prove  what  the  person  from  whom  he  got  them  said 
at  the  time.  State  v.  Jordan,  69  Iowa,  506  ;  Guajardo  v.  State, 
24  Tex.  Grim.  603. 

The  presumption  of  guilt  arising  from  the  possession  of  re- 
cently stolen  goods  is  wholly  rebutted  by  showing  that  such  pos- 
session was  obtained  since  the  date  of  the  stealing.  State  v. 
Humason,  5  Wash.  499  ;  Heed  v.  State,  25  Wis.  421. 

If  the  prosecution  relies  on  the  fact  of  possession  to  prove  lar- 
ceny, the  accused  may  offer  in  evidence  any  explanation  given  by 
him  at  the  time  when  he  was  first  found  with  the  property  in  his 
possession.  Goens  v.  State  (Tex.),  31  S.  W.  656.  And  the  jury 
should  give  such  explanation  as  much  weight  as  they  deem  it 
entitled  to  in  view  of  its  inherent  probability,  and  the  failure  of 
the  State  to  disapprove  it  where  the  means  of  doing  so  lie  within 
its  power.     Payne  v.  State,  57  Miss.  348. 


AMERICAN  NOTES.  237^' 

Explaining  away  Threats. 

When  it  has  been  shown  that  the  defendant  had  had  an  inten- 
tion to  commit  a  crime  or  had  tlireatened  to  do  so,  he  may  show 
the  length  of  time  since  elapsed  justifying  an  inference  that  the 
intention  had  been  abandoned  and  the  circumstances  under  which 
the  threats  were  made.     Atkins  v.  State,  16  Ark.  581. 

To  explain  threats  that  he  had  made  against  the  deceased,  the 
accused  may  prove  that  prior  thereto  the  deceased  hatl  attacked 
him  with  a  hatchet.     Boljer  v.  People,  129  111.  112. 

The  defendant  may  show  that  threats  made  by  him  were  brag- 
gadocio only,  as  by  showing  his  threat  to  whip  several  men  at 
once.     People  v.  Curtis,  52  Mich.  616. 

Identity. 

To  rebut  evidence  of  identity  the  accused  may  show  that 
another  or  others  very  closely  resemble  him.  White  v.  Com.,  80 
Ky.  483.  This  sort  of  evidence  was  rejected  when  offered  by 
the  State  in  Com.  v.  Webster,  5  Cush.  295. 

In  Grant  v.  State  (Tex.),  58  S.  W.  1025,  the  defendant  es- 
caped punishment,  where  his  conviction  rested  upon  tracking 
him,  by  showing  that  others  thereabouts  had  a  wagon,  a  horse, 
and  a  mule,  and  wore  shoes  similar  to  his. 

Absence  of  Motive. 

"  The  absence  of  evidence  suggesting  motive  for  the  commis- 
sion of  the  crime  charged  is  a  circumstance  in  favor  of  the  ac- 
cused, to  be  given  such  weight  as  the  jury  deems  proper;  but 
proof  of  motive  is  never  indispensable  to  conviction."  Pointer  v. 
U.  S.,  151  U.  S.  396.     And  see  note  to  Chapter  III. 

Absence  of  motive  to  do  the  act  charged  may  be  proved  by 
the  defendant,  but  it  does  not  entitle  him  to  an  acquittal ;  it  is 
merely  a  fact  to  be  weighed  by  the  jury.  Salm  v.  State,  89  Ala. 
56. 

In  Pogue  V.  State,  12  Tex.  App.  283,  the  defendant,  charged 
with  homicide,  showed  that  he  and  the  deceased  were  friends 
and  he  had  no  motive  to  kill ;  that  his  peculiar  conduct  after- 
wards might  fully  be  accounted  for  by  the  fact  that  he  was  drunk  ; 
that  the  defendant's  clothes  bore  no  blood  stains,  although  the 


237  -  AMERICAN   NOTES. 

killing  was  witii  a  knife  and  ihcrc  wcif  several  wounds  ;  that  the 
defenilant  did  not  leave  the  neighborhootl,  but  appeared  surprised 
when  told  of  the  deceased's  death,  and  attemied  the  incjuest. 
Although  there  were  many  circumstances  indicating  tlie  defenil- 
ant's  guilt,  it  was  held  that  they  were  not  wholly  inconsistent 
with  his  innocence. 

Innocent  Motive. 

Where  the  defendant,  a  saloon  keeper,  was  charged  with  in- 
juring a  canal  for  the  purpose  of  selling  beer  to  the  repairing 
gang,  and  he  is  shown  to  have  bought  fifteen  barrels  of  beer 
before  the  offence  was  committed,  he  may  show  that  he  bought 
an  unusual  amount  of  beer  at  that  time  to  avoid  payment  of  a 
revenue  tax  about  to  be  imposed.  People  v.  Manahan,  70  N.  Y. 
Supp.  loS. 

Rebuttal  of  Motive. 

Where  robbery  is  the  alleged  motive  for  a  homicide,  the  de- 
fendant may  show  that  the  deceased  was  not  reputed  to  have 
money  and  actually  had  none.  Lancaster  v.  State  (Tex.),  31 
S.  W.  515. 

Where  the  motive  for  a  murder  may  have  been  robbery,  certain 
money  in  deceased's  possession  being  gone,  the  defendant  proved 
that  he  had  no  need  of  money,  and  had  ^300  at  the  time,  the 
amount  possessed  by  the  deceased  being  $30.  Tilley  v.  Com.,  90 
Va.  99. 

A  defendant  charged  with  robbery  may  not  prove  that  he  was 
already  possessed  of  property  to  negative  the  existence  of  a 
motive.      Reynolds  z'.  State  (Ind.),  46  N.  E.  31. 

Defendant  charged  with  wife  murder  may  rebut  evidence  that 
his  relations  with  his  wife  were  unfriendly  by  proof  of  affectionate 
letters  from  her.  Pettit  v.  State,  135  Ind.  393;  State  v.  Leabo, 
84  Mo.  168,  54  Am.  Rep.  91. 

The  defendant  cannot  prove  the  fact  that  the  deceased  and  he 
were  on  friendly  terms  a  year  before  the  homicide.  Com.  v. 
Twitchell  (Pa.),  i  Brevvst.  551. 

The  defendant  may  not  prove  specific  acts  of  kindness  to  the 
person  claimed  to  have  been  killed  by  him,  where  the  State  has 
introduced  no  evidence  of  unkindness.  Murphy  v.  People, 
9  Colo.  435. 


AMERICAN  NOTES.  237  a* 

Voluntary  Surrender. 

In  America  the  courts  have  very  generally  excluded  evidence 
on  the  part  of  the  accused  that  he  surrendered  himself  openly 
and  voluntarily.  State  v.  Musick,  loi  Mo.  260;  State  v. 
McLaughlin,  149  Mo.  19;  Vaughn  v.  State,  130  Ala.  18;  Oliver 
V.  State,  17  Ala.  587/  contra,  Boston  v-  State,  94  Ga.  590; 
White  V.  State,  iii  Ala.  92. 

In  Vaughn  v.  State,  130  Ala.  18,  the  defendant  was  not  allowed 
to  prove  that  he  refused  to-flee  and  surrendered  voluntarily,  since 
there  was  no  evidence  on  the  part  of  the  State  that  he  attempted 
to  get  away. 

"The  district  attorney  objected  to  the  question,  and  appel- 
lant's counsel  stated  to  the  Court  that  he  desired  to  show  that 
appellant,  immediately  after  the  shooting,  went  to  Paso  Robles 
for  the  purpose  of  surrendering  himself  to  the  officers,  but  acting 
Upon  the  advice  of  a  Mr.  Korn  he  returned  home  and  waited  for 
the  officers  to  come  after  him.  The  Court  sustained  the  objec- 
tion. This  question  might  well  have  been  allowed  j  and  in  many 
cases  the  refusal  to  allow  such  questions  would  be  material  error. 
But  in  the  case  at  bar  there  was  no  evidence  or  pretence  that 
appellant  attempted  flight,  therefore  he  could  not  have  been 
prejudiced  by  the  rejection  of  the  testimony."  People  v.  Shaw, 
III  Cal.  171,  176. 

That  the  accused  voluntarily  appeared  to  answer  the  charge  may 
be  shown.     State  v.  Gardner,  Tappan  (Ohio),  124. 

Refusal  to  Escape. 

It  has  many  times  been  held  in  the  United  States  that  the  de- 
fendant cannot  prove  that  he  refused  to  escape  when  he  had  an 
opportunity  to  do  so.  People  v.  Rathburn,  21  Wend.  509  ;  Com. 
V.  Hersey,  2  Allen,  173;  People  v.  Montgomery,  53  Cal.  576; 
Jordan  v.  State,  81  Ala.  20  ;  Kennedy  v.  State,  loi  Ga.  559. 

Such  evidence  was  admitted  in  Lewis  v.  State,  4  Kan.  309. 

Conduct  In  die  at mg  Consciousness  of  Innocence. 

Courts  very  generally  refuse  to  allow  proof  of  defendant's  con- 
duct to  show  his  consciousness  of  innocence,  though  it  would 
seem  to  be  equally  relevant  with  conduct  to  show  consciousness 


237  b*  AMERICAN   NOTES. 

of  guilt.  Campbell  v.  State,  23  Ala.  44  ;  State  v.  Strong,  153 
Mo.  54S. 

To  show  innocence  one  cannot  show  that  on  other  occasions 
he  had  opportunities  to  violate  the  law  but  did  not  do  so. 
Arclier  7'.  State,  45  Md.  33. 

In  Pinkard  v.  State,  30  Ga.  759,  the  defendant  was  allowed  to 
show  he  put  the  ofificers  on  the  track  of  the  real  criminal. 

Previous  Bad  Character. 

The  previous  bad  character  of  the  accused  is  certainly  evidence 
relevant  to  show  the  probability  of  his  having  committed  a  crime. 
It  could  well  be  termed  an  "inculpatory  moral  indication,  but 
it  is  not  admitted,"  for  reasons  of  policy  and  humanity. 

The  State  may  attack  the  character  of  an  accused  only  when 
he  introduces  evidence  that  it  is  good,  and  even  then  the  State 
may  not  prove  any  specific  fa>cts,  but  is  restricted  to  evidence  as 
to  general  reputation.     Bullock  v.  State,  65  N.  J.  L.  557. 

But  evidence  of  the  defendant's  bad  character  may  be  given 
when  the  defendant  has  offered  evidence  of  his  good  character. 
This  is  admitted  probably  not  so  much  for  the  purpose  of  prov- 
ing the  defendant's  guilt,  as  to  impose  a  necessary  check  upon 
his  introducing  false  evidence  of  good  character.  Reg.  v.  Row- 
ton,  Leigh  &  C,  520;  Com.  v.  Hardy,  2  Mass.  317;  U.  S.  z'. 
Holmes,  15  Fed.  382. 

The  previous  bad  character  of  the  accused,  though  equally 
relevant  with  his  previous  good  character,  is  not  admissible 
against  him.  The  reason  is  given  in  Regina  v.  Rowton,  Leigh  & 
C.  520,  as  follows  :  .  .  .  "if  the  prosecution  were  allowed  to  go  into 
such  evidence,  we  should  have  the  whole  life  of  the  prisoner 
ripped  up,  and,  as  has  been  witnessed  elsewhere,  upon  a  trial  for 
murder  you  might  begin  by  showing  that  when  a  boy  at  school 
the  prisoner  had  robbed  an  orchard,  and  so  on  through  the  whole 
of  his  life  ;  and  the  result  would  be  that  the  man  on  his  trial  might 
be  overwhelmed  with  prejudice,  instead  of  being  convicted  by 
that  affirmative  evidence  which  the  law  of  this  country  requires. 
The  evidence  is  relevant  to  the  issue,  but  is  excluded  for  reasons 
of  policy  and  humanity;  because  although  by  admitting  it  you 
might  arrive  at  justice  in  one  case  out  of  a  hundred,  you  would 
probably  do  injustice  to  the  other  ninety-nine." 


AMERICAN  NOTES.  237  ^r* 

See  also  State  v.  Lapage,  57  N.  H.  289;  People  v.  Shay,  147 
N.  Y.  78;  State  v.  Kabrich,  39  Iowa,  277;  Com.  v.  Webster, 
5  Cush.  295  ;  State  v.  Beaty,  62  Kan.  266. 

Weight  of  Character  as  Evidence. 

The  Court  should  not  charge  that  evidence  of  good  character 
is  entitled  to  less  weight  in  serious  than  in  minor  crimes,  Har- 
rington V.  State,  19  Ohio  St.  264. 

Proof  of  good  character  may  be  sufficient  to  rebut  wholly  any 
presumption  of  guilt  where  the  defendant  has  been  found  in  pos- 
session of  stolen  goods,  particularly  where  his  possession  can  be 
accounted  for  in  a  way  consistent  with  innocence,  as  where  a 
purse  stolen  in  a  crowd  is  found  in  a  reputable  man's  coat-pocket. 
Ingalls  V.  State,  48  Wis.  647  ;  State  v.  Castra,  93  Mo.  242  ; 
Hughes  V.  State,  8  Humph.   (Tenn.)   75. 

"  Against  facts  strongly  proved  good  character  cannot  avail. 
It  is  therefore  in  smaller  offences  in  such  as  relate  to  the  actions 
of  daily  and  common  life,  as  when  one  is  charged  with  pilfering 
and  stealing  that  evidence  of  a  high  character  for  honesty  will 
satisfy  a  jury  that  the  accused  is  not  likely  to  yield  to  so  slight 
a  temptation.  In  such  case,  where  the  evidence  is  doubtful, 
proof  of  character  may  be  given  with  good  effect. 

"  But  still,  even  with  regard  to  the  higher  crimes,  testimony  of 
good  character,  though  of  less  avail,  is  competent  evidence  to  the 
jury  and  a  species  of  evidence  which  the  accused  has  a  right  to 
offer.  But  it  behooves  one  charged  with  an  atrocious  crime  like 
this  of  murder  to  prove  a  high  character,  and,  by  strong  evidence, 
to  make  it  counterbalance  a  strong  amount  of  proof  on  the  part 
of  the  prosecution.  It  is  the  privilege  of  the  accused  to  put  his 
character  in  issue  or  not.  If  he  does  and  offers  evidence  of  good 
character,  then  the  prosecution  may  give  evidence  to  rebut  and 
counteract  it.  But  it  is  not  competent  for  the  government  to 
give  in  proof  the  bad  character  of  the  defendant,  unless  he  first 
opens  that  line  of  inquiry  by  evidence  of  good  character." 
Com.  V.  Webster,  5   Cush.   295,  325. 

Alibi  as  Evidence. 

Of  the  nature  of  an  alibi  Chief  Justice  Shaw  in  Com.  v.  Webster, 
5  Cush.  295,  318,  says  :   *•  When  a  fact  has  occurred,  with  a  series 


2iy  d*  AMERICAN   NOTES. 

of  circumstances  preceding,  accompanying,  and  following  it,  we 
know  that  these  must  all  have  been  once  consistent  with  each 
other;  otherwise  the  fact  would  not  have  been  possible.  There- 
fore, if  any  one  fact  necessary  to  the  conclusion  is  wholly  incon- 
sistent with  the  hypothesis  of  the  guilt  of  the  accused,  it  breaks 
the  chain  of  circumstantial  evidence,  upon  which  the  inference 
depends;  and,  however  plausible  or  apparently  conclusive  the 
other  circumstances  may  be,  the  charge  must  fail.  Of  this 
character  is  the  defence  usually  called  an  a/il>i ;  that  is,  that  the 
accused  was  ehmvhere  at  the  lime  the  offence  is  alleged  to  have 
been  committed.  If  this  is  true,  —  it  being  impossible  that  the 
accused  should  be  in  two  places  at  the  same  time,  —  it  is  a  fact 
inconsistent  with  that  sought  to  be  proved,  and  excludes  its 
possibility." 

Somewhat  similar  to  the  defence  of  alibi  is  the  defence  in 
homicide  cases  that  the  supposed  deceased  is  still  alive  or  that 
he  was  alive  since  the  time  this  defendant  is  accused  of  killing 
him.  See  Com.  v.  Webster,  5  Cush.  295,  where  the  defendant 
tried  to  show  that  the  deceased.  Dr.  Parkman,  was  seen  about 
Boston  at  a  time  later  than  the  time  of  the  alleged  murder. 

Alibi  —  Weight  of  Evidence. 

A  verdict  will  not  be  set  aside  merely  because  the  witnesses 
testifying  to  an  alibi  are  unimpeached  where  the  defendant 
was  clearly  identified  as  guilty  of  the  crime  charged.  State 
V.  White  (Iowa),  68  N.  W.  564;  State  v.  Stanley,  109  Iowa, 
142. 

An  alibi  is  of  no  value  as  a  defence  unless  it  covers  all  the 
time  within  which  the  crime  may  have  been  committed.  Brice- 
land  V.  Com.,  74  Pa.  463. 

But  it  is  sufficient  if  the  defendant  is  shown  to  have  been 
at  a  distant  place  during  even  a  small  portion  of  the  time  in  ques- 
tion, wliere  it  would  have  been  impossible  for  him  to  have  reached 
the  scene  of  the  crime  in  the  remainder  of  the  time  during 
which  he  was  not  accounted  for.  Waters  v.  People,  172  111  367  ; 
Henry  v.  State  (Neb.),  70  N.  W.  924  ;  Miller  v.  Terr.,  3  Wash.  T. 
554,  19  P^c.  50. 

An  alibi  is  not  established  by  proof  that  the  defendant  one 
hour  after  a  certain  offence  w^s  in  another  town  fifteen  miles  away 


AMERICAN   NOTES.  237  e* 

and  connected  by  rail  with  the  place  of  the  crime.  Donaho  v. 
State   (Tex.),  47  S.  W.  469. 

Where  the  testimony  against  the  defendant  consisted  wholly  of 
the  evidence  of  three  accomplices  already  convicted,  who  were 
discredited  by  previous  inconsistent  statements  and  by  proof  that 
they  were  implicating  the  defendant  in  hope  of  a  pardon  for 
themselves,  it  was  held  that  a  conviction  should  not  be  sustained 
in  the  face  of  the  testimony  of  three  relatives  and  three  others 
that  the  defendant  was  in  their  company  during  three  hours  of 
the  time  the  witnesses  claimed  he  was  with  them,  and  the  testi- 
mony of  a  half  brother,  that  the  defendant  slept  with  him  during 
the  same  night.     Waters  v.  People,  172  111.  367. 

In  Miller  v.  Terr.,  3  Wash.  T.  554,  19  Pac.  50,  two  persons 
were  killed  and  robbed  and  their  bodies  sunk  in  a  lake.  The 
defendant  had  a  slight  motive  to  do  away  with  one  of  them, 
he  had  a  gun  with  which  the  wounds  might  have  been  given,  and 
a  boat  like  his  had  been  seen  going  from  the  place  of  the  crime 
toward  his  home.  He  behaved  afterwards  in  a  manner  indicating 
consciousness  of  guilt.  But  it  was  shown  that  the  gunshots  had 
been  heard  about  7  a.m.,  that  the  defendant  had  not  left  home 
until  8  A.M.,  that  he  had  arrived  in  Seattle  at  10  a.m.,  and  that 
had  he  been  on  the  scene  of  the  crime  he  could  not  have  reached 
Seattle  before  i  p.m.  None  of  the  stolen  property  was  traced  to 
the  defendant.     A  conviction  was  set  aside. 

The  defendant  charged  with  arson  in  the  nighttime  may  show 
that  he  was  in  his  home  and  could  not  have  left  it  without  arous- 
ing the  other  inmates.     State  v.  Delaney,  92  Iowa,  467. 

Where  the  defendant  alleges  he  was  in  a  certain  house  at  the 
time  of  the  crime  charged,  he  may  show  in  outline  the  conversa- 
tions at  that  time  between  him  and  the  other  individuals  there. 
State  V.  Bedard,  65  Vt.  278. 

Alibi  —  Sufficient  if  Creating  a  Reasonable  Doubt. 

It  is  generally  held  sufficient  for  the  evidence  of  an  alibi  to 
raise  a  reasonable  doubt  as  to  the  defendant's  guilt ;  he  need  not 
establish  it  by  a  preponderance  of  the  evidence.  Blankenship  v. 
State,  55  Ark.  244;  Beck  v.  State  (Neb.),  70  N.  W.  498;  Pickens 
V.  State  (Ala.),  22  So.  551. 

If  the  evidence  of  an  alibi  taken  in  connection  with  the  other 


211  f*  AMERICAN   NOTES. 

testimony  creates  a  reasonable  doubt  of  guilt,  the  defendant 
should  be  acquitted.  Sheehan  v.  People,  131  111.  22  ;  Harrison  v. 
State,  83  Ga.  129;  Pate  v.  State,  94  Ala.  14;  State  v.  Jaynes, 
78  N.  C.  504. 

Where  the  defendant  relies  upon  an  alibi  alone,  it  must  be 
established  by  a  preponderance  of  the  evidence,  as  against  the 
evidence  that  he  was  near  the  scene  of  the  crime ;  but  evidence 
of  an  alibi  not  amounting  to  a  preponderance  may  be  taken  in 
connection  with  other  testimony  to  establish  a  reasonable  doubt 
as  to  defendant's  guilt.     Lucas  v.  State,  no  Ga.  756. 


Alibi  —  Rebuttal. 

The  accused  testified  that  he  was  in  a  certain  city  at  the  time 
of  the  crime  and  saw  there  a  procession.  His  description  of  that 
procession  may  be  shown  to  be  inaccurate.  People  v.  Gibson, 
58  Mich.  368. 

Where  a  defendant  claimed  to  have  attended  a  certain  circus 
at  the  time  of  the  crime,  and  returned  on  a  certain  train,  a 
neighbor  was  allowed  to  testify  that  he  did  not  see  the  de- 
fendant either  at  the  circus  or  on  the  train.  State  v.  Phair, 
48  Vt.  366. 

In  People  v.  Durrant,  116  Cal.  179,  where  the  defendant 
was  charged  with  the  murder  of  a  young  lady  in  a  church  at 
3  P.M.,  he  alleged  at  once,  and  firmly  adhered  to  his  statement, 
that  he  attended  at  that  hour  a  lecture  at  the  Medical  College 
where  he  was  a  student,  and  in  corroboration  of  his  statement  he 
produced  what  purported  to  be  his  original  notes  of  the  lecture 
taken  at  the  time.  But  the  State  showed  that  he  had  pro- 
cured these  very  notes  from  a  fellow  student  and  friend  after 
his    arrest. 

The  State  may  rebut  evidence  in  an  alibi,  even  though  it  did 
not  in  chief  introduce  any  testimony  directly  contradictory  to  such 
subsequently  proved  alibi.     State  v.  Maher,  74  Iowa,  77. 

Where  the  defendant  was  many  miles  away  from  the  scene  of 
the  crime  when  arrested,  and  could  not  have  reached  the  spot 
since  the  crime  by  the  roundabout  roads,  it  may  be  shown  that 
the  intervening  fences  were  of  wire  and  the  defendant  had  a  wire 
cutter.     Goldsby  v.  U.  S.,  160  U.  S.  70. 


AMERICAN  NOTES.  237 


Truth. 


The  accused,  in  order  to  meet  evidence  that  he  gave  a  false 
account  of  himself,  cannot  show  that  on  other  occasions  he  gave 
a  true  account.     Com.  v.  Goodwin,  14  Gray  (Mass.),  55. 

Fabrication  by   Others. 

Where  the  only  evidence  against  the  defendant  was  given 
by  a  witness  who  before  the  trial  told  various  parties  that  he 
knew  nothing  whatever  against  the  defendant,  a  conviction  was 
set  aside.     Adams  v.  State,  10  Tex.  App.  677. 

Character  of  the  Defefidant. 

"  In  criminal  proceedings,  the  fact  that  the  person  accused  has 
a  good  character  is  deemed  to  be  relevant ;  but  the  fact  that  he 
has  a  bad  character  is  deemed  to  be  irrelevant,  unless  it  is  itself 
a  fact  in  issue,  or  unless  evidence  has  been  given  that  he  has  a 
good  character,  in  which  case  evidence  that  he  has  a  bad  charac- 
ter is  admissible."     Stephen's  Dig.  Evid.,  Art.  56. 

Evidence  of  good  character.  —  Com.  v.  Gazzolo,  123  Mass. 
220;  Edgington  v.  U.S.,  164  U.  S.  361  3  Com.  v.  Cleary,  135 
Pa.  St.  64;  Jackson  v.  State,  81  Wis.  127;  People  v.  Harrison, 
93  Mich.  594;  State  v.  Howell,  100  Mo.  628  ;  State  ?'.  Rodman, 
62  Iowa,  456. 

Evidence  of  bad  character.  — State  v.  Lapage,  57  N.  H.  245, 
24  Am.  Rep.  69;  State  v.  Ellwood,  17  R.  I.  763,  24  Atl.  782; 
State  v.  Hull,  18  R.  I.  207,  26  Atl.  191,  20  L.  R.  A.  609  ;  People 
V.  Fair,  43  Cal.  137  ;  Com.  z/.  Sacket,  22  Pick.  (Mass.)  394  ;  Com. 
V.  Hardy,  2  Mass.  303,  317;  Com.  v.  O'Brien,  119  Mass.  345. 

That  a  defendant's  character  is  relevant  and  actually  tends  to 
show  the  probability  of  the  act  of  which  he  is  accused  cannot  be 
doubted.  R.  v.  Stannard,  7  C.  &  P.  674;  R.  v.  Rowton,  Leigh 
&:  C.  520;  Cancemi  v.  People,  16  N.  Y.  506;  State  v.  Lee,  22 
Minn.  409. 

Evidence  of  the  good  character  of  the  defendant  is  admissible 
in  his  favor  in  all  criminal  prosecutions.  People  v.  Stewart,  28 
Cal.  395  ;  People  v.  VanDam,  107  Mich.  425  ;  State  v.  Northrup, 
48  Iowa,  584  ;  Com.  v.  Webster,  5  Cush.  295  ;  State  v.  Hice,  117 
N.  C.  782. 


21"]  h*  AMERICAN   NOTES. 

The  character  must  he  as  to  points  which  would  tend  to  show 
that  it  was  unlikely  that  the  defendant  committed  the  crime  in 
question.  Com.  v.  Nagle,  157  Mass.  554;  Griffin  v.  State,  14 
Ohio  St.  55. 

The  character  which  may  be  proved  is  not  the  character  in 
general  of  the  accused,  but  those  specific  traits  of  his  character 
that  would  have  a  bearing  upon  the  commission  of  the  particular 
crime.  Morgan  v.  State,  88  Ala.  224  ;  Kee  v.  State,  28  Ark. 
155  ;  People  v.  Fair,  43  Cal.  137  ;  People  v.  Chrisman,  135  Cal. 
282  ;  State  v.  Bloom,  68  Ind.  54. 

Defendant's  reputation  as  a  good  soldier  is  not  relevant  in  a 
prosecution  for  murder.      People  v.  Garbutt,  17  Mich.  9. 

One  accused  of  murder  may  prove  his  reputation  for  peace 
and  quietude.      House  v.  State  (Tex.),  57  S.  W.  825. 

In  a  prosecution  for  having  carnal  knowledge  of  a  woman 
under  the  age  of  consent,  the  defendant  may  \)\ovq  his  "reputa- 
tion for  morality,  virtue,  and  honesty  in  living."  State  v.  Snover, 
63  N.  J.  L.  383. 

In  bastardy  proceeding  the  accused  may  prove  his  previous 
good  character  for  morality.  Hawkins  v.  State,  i  Zab.  630 ; 
Dally  V.  Woodbridge,  i  Zab.  491. 

In  a  prosecution  for  adultery,  evidence  of  the  good  character 
for  chastity  of  the  woman  with  whom  the  adultery  was  alleged  to 
have  been  committed   is   admissible.     Com.  v.  Gray,  1 29   Mass. 

474- 

General  Reputation,  ?wt  Particular  Acts. 

Testimony  as  to  the  defendant's  good  character  must  be  con- 
fined to  general  reputation  and  cannot  include  specific  acts.  State 
V.  Lapage,  57  N.  H.  245,  24  Am.  Rep.  69  ;  Com.  v.  O'Brien, 
119  Mass.  342,  345,  20  Am.  Rep.  325;  Com.  v.  Harris,  131 
Mass.  336.  Compare  Com.  v.  Robinson,  Thacher  Cr.  Cas.  230  ; 
Snyder  v.  Com.,  85  Pa.  St.  519;  McQueen  v.  State,  108  Ala. 
54  ;  Berneker  v.  State,  40  Neb.  810  ;  Betts  v.  Lockwood,  8  Conn. 
488,  489;  State  V.  Ferguson,  71  Conn.  227. 

Reputation.,  7iot  Disposition. 

"  Assuming,  then,  that  evidence  was  receivable  to  rebut  the 
evidence  of  good  character,  the  second  question  is.  Was  the  an- 
swer which  was  given  in  this  case,  in  reply  to  a  perfectly  legiti- 


AMERICAN   NOTES.  237  Z  * 

mate  question,  such  an  answer  as  could  properly  be  left  to 
the  jury?  {Q.  'What  is  the  defendant's  general  character  for 
decency  and  morality  of  conduct?'  Ans.  'I  know  nothing  of 
the  neighborhootl's  opinion,  because  I  was  only  a  boy  at  school 
when  I  knew  him  ;  but  my  own  opinion,  and  the  opinion  of  my 
brothers  who  were  also  pupils  of  his,  is  that  his  character  is  that 
of  a  man  capable  of  the  grossest  indecency  and  the  most  flagrant 
immorality.'  The  defendant  was  charged  with  indecent  assault 
upon  a  boy.)  Now,  in  determining  this  point,  it  is  necessary  to 
consider  what  is  the  meaning  of  character.  Does  it  mean  evi- 
dence of  general  reputation  or  evidence  of  disposition  ?  I  am 
of  opinion  that  it  means  evidence  of  general  reputation.  What 
you  want  to  get  at  is  the  tendency  and  disposition  of  the  man's 
mind  towards  committing  or  abstaining  from  committing  the  class 
of  crime  with  which  he  stands  charged  ;  but  no  one  has  ever 
heard  the  question,  What  is  the  tendency  and  disposition  of  the 
prisoner's  mind?  put  directly."  R.  v.  Rowton,  i  L.  &  C.  520. 
See  criticism  of  this  case  below. 

"  The  subject  character  is  considered  at  length  in  R.  v.  Rowton, 
1865,  I  L.  &  C.  520.  One  consequence  of  the  view  of  the  sub- 
ject taken  in  that  case  is  that  a  witness  may  with  perfect  truth 
swear  that  a  man,  who  to  his  knowledge  has  been  a  receiver  of 
stolen  goods  for  years,  has  an  excellent  character  for  honesty,  if 
he  has  had  the  good  luck  to  conceal  his  crimes  from  his  neigh- 
bors. It  is  the  essence  of  successful  hypocrisy  to  combine  a 
good  reputation  with  a  bad  disposition,  and  according  to  R.  v. 
Rowton,  the  reputation  is  the  important  matter.  The  case  is 
seldom  if  ever  acted  on  in  practice.  The  question  always  put  to 
a  witness  to  character  is,  What  is  the  prisoner's  character  for 
honesty,  morality,  or  humanity?  as  the  case  may  be;  nor  is  the 
witness  ever  warned  that  he  is  to  confine  his  evidence  to  the  pris- 
oner's reputation.  It  would  be  no  easy  matter  to  make  the  com- 
mon run  of  witnesses  understand  the  distinction."  Stephen's 
Dig.  Evid.,  Appendix,  note  xxv. 

Although  it  has  often  been  said  that  the  term  "  Character  "  in- 
cludes both  one's  real  disposition  and  his  reputation  for  having 
such  disposition  (see  Powers  v.  Leach,  26  Vt.  278),  yet  in  so  far 
as  it  is  to  be  used  as  an  evidentiary  fact  to  establish  the  doing  or 
the  not  doing  of  an  act,  it  means  the  real  disposition  only.  Rep- 
utation is  only  a  fact   from    which   one's  real   character  is  to  be 


2377*  AMERICAN   NOTES. 

inferred,  and  from  his  real  character  is  to  be  inferred  the  proba- 
bihty  of  his  having  acted  in  a  certain  manner. 

The  rule  that  one's  character  must  be  established  by  proof  of 
his  reputation  merely  is  based  upon  the  idea,  not  that  they  are 
the  same  thing,  but  that  this  mode  of  proof  is  less  objectionable 
than  that  which  depends  upon  the  inilividual  opinion  of  witnesses. 
Bottoms  7'.  Kent,  3  Jones  L.  160;   State  v.  Lee,  22  Minn.  409. 


CHAPTER  VI. 

RULES    OF    INDUCTION    SPECIALLY    APPLICABLK    TO 
CIRCUMSTANTIAL  EVIDENCE. 

All  reasoning-  concerning  human  conduct  is 
essentially  a  process  of  induction,  of  which  it  is  the 
object,  by  means  of  i^cneralizations  founded  upon  a 
knowledge  of  the  faculties,  emotions,  and  laws  of  the 
mind,  to  discover  the  moral  qualities  and  causal  origin 
of  the  voluntary  actions  of  our  fellow-men  ;  whence  it 
follows  that  the  rules  for  the  conduct  of  inductive  in- 
quiry belong  formally  to  the  province  of  Logic,  or  the 
science  of  the  laws  of  thought.  The  rules  of  evidence 
are  therefore  a  selection  of  maxims  tacitly  assumed 
and  acted  upon  by  all  men  in  the  ordinary  affairs  of  life, 
and  recognized  by  philosophical  wisdom  and  judicial 
experience  as  the  best  means  of  discovering  truth. 
The  purpose  of  this  essay  requires  the  enumeration 
only  of  such  few  leading  rules  of  evidence  as  are  of 
special,  though  not  of  exclusive  application,  to  the 
particular  subject-matter  of  this  treatise. 

Rule  i. — The  facts  alleged  as  the  basis  of  any 
leo^al  inference  must  be  clearly  proved,  and  beyond 
reasonable  doubt  connected  with  the  factnni prcbandum. 
This  rule  is  an  indispensable  condition  of  all  sound 
induction  ;  and  its  object  is,  by  proper  rejections  and 
exclusions,  and  after  as  many  negations  as  are 
necessary  (^),  to  verify  facts  and  clear  them  from  all 

{a)  Bacon,  Novum  Organum,  Lib.  i.,  Aph.  cv. ;  Mill's  Logic,  Book  V., 
chs.  2  and  3. 


RULES    OF    EVIDENCE.  239 

ambig-uity,  so  that  they  may  become  the  premises 
of  logical  argument  and  reasoning'.  In  moral 
investigations  the  facts  are  generally  more  obscurely 
developed  than  when  physical  phenomena  form  the 
subjects  of  inquiry  ;  and  they  are  frequently  blended 
with  foreign  and  Irrelevant  circumstances,  so  that 
the  establishment  of  their  connection  with  xho.  factzcm 
probanduni  becomes  matter  of  considerable  difficulty. 
No  weight  therefore  must  be  attached  to  circum- 
stances which,  however  they  may  excite  conjecture, 
do  not  warrant  belief.  Occurrences  may  be 
mysterious  and  justify  even  vehement  suspicion,  and 
yet  the  supposed  connection  between  ehem  may  be 
but  imaginary,  and  their  co-existence  Indicative  of 
accidental  concurrence  merely,  and  not  of  mutual 
correlation.  **  Where  there  is  nothing  but  the 
evidence  of  circumstances  to  guide  you,"  said  Mr. 
justice  Bailey,  "those  circumstances  ought  to  be 
closely  and  necessarily  connected,  and  to  be  made  as 
clear  as  If  there  were  absolute  and  positive  proof"  {h). 
Every  circumstance  therefore  which  is  not  clearly 
shown  to  be  really  connected  as  its  correlative  with 
the  hypothesis  it  is  supposed  to  support,  must  be 
rejected  from  the  judicial  balance  ;  in  other  words, 
It  must  be  distinctly  established  that  there  exists 
between  the.  facluju  proda7idnin  and  the  facts  which 
are  adduced  in  proof  of  it,  a  real  connection,  either 
evident  and  necessary,  or  so  highly  probable  as  to 
admit  of  no  other  reasonable  explanation  {c). 

{b)  Rexw.  Downing,  Salop  Summer  Ass.  1822,  the  next  case  infra. 
Epithets  require  to  be  watched:  "absolute  or  positive  proof"  can 
mean  only  proof  such  as  reasonably  induces  the  conviction  of 
certainty.     See  p.  262,  inff-a. 

{c)  Traite  de  la  Preuve,  par  Alittermaier,  ch.  55  and  57, 


240  RULES    OF    EVIDENCE. 

The  followincr  cases  will  serve  to  manifest  the 
dangerous  consequences  which  may  ensue  from  the 
disregard  of  this  most  salutary  cautionary  rule. 

Two  brothers-in-law,  Joseph  Downing  and  Samuel 
Whitehouse,  met  by  appointment  to  shoot,  and 
afterwards  to  look  at  an  estate,  which  on  the  death 
of  Whitehouse's  wife  without  issue  would  devolve 
on  Downing.  They  arrived  at  the  place  of  meeting 
on  horseback,  Dov/ning  carrying  a  gun-barrel  and 
leading  a  colt.  After  the  business  of  the  day,  and 
after  drinking  together  some  hours,  they  set  out  to 
return  home,  Downing  leading  his  colt  as  in  the 
morning.  Their  way  led  through  a  gate  opening 
from  the  turnpike  road,  and  thence  by  a  narrow 
track  through  a  wood.  On  arriving  at  the  gate, 
Downincj  discovered  that  he  had  iorootten  his  <jun- 
barrel  ;  and  a  man  v.'ho  accompanied  them  to  open 
the  gate  went  back  for  it,  returning  in  about  three 
minutes.  In  the  meantime  Whitehouse  had  gone 
on  in  advance  ;  and  the  prisoner,  having  received 
his  gun-barrel,  followed  in  the  same  direction. 
Shortly  afterwards  Whitehouse  was  found  lying  on 
the  ground  in  the  wood,  at  a  part  where  the  track 
widened,  about  600  yards  from  the  gate,  with  his 
hat  off,  and  insensible  from  several  wounds  in  the 
head,  one  of  which  had  fractured  his  skull.  While 
the  person  by  whom  he  was  discovered  went  for 
assistance,  the  deceased  had  been  turned  over  and 
robbed  of  his  watch  and  money.  About  the  same 
time  Downing  was  seen  in  advance  of  the  spot  where 
the  deceased  lay,  proceeding  homeward  and  leading 
his   colt ;    and    a   few  minutes  aftervv'ards  tv/o  men 


RULES    OF    EVIDENCE.  24 1 

were  seen  following"  in  the  same  direction.  Sus 
picion  attached  to  Downing,  partly  from  his  interest 
in  the  estate  enjoyed  by  the  deceased,  and  he  was 
put  upon  his  trial  for  this  sup;joied  murder;  but  it 
was  clear  that  he  had  no  motive  on  that  account  to 
kill  the  deceased,  as  the  estate  was  not  to  come  to 
him  until  after  failure  of  issue  of  the  deceased's 
wife,  to  whom  he  had  been  married  several  years, 
without  having  had  children  ;  so  that  it  was  his 
interest  that  the  way  should  not  be  opened  to  a 
second  marriage.  That  the  deceased  had  been 
murdered  at  all,  was  a  highly  improbable  conjecture, 
and  it  was  far  more  probable  that  he  had  fallen  from 
his  horse  and  received  a  kick,  especially  as  his  hat 
bore  no  marks  of  injury,  so  that  it  had  probably 
fallen  off  before  the  infliction  of  the  wounds.  That 
the  deceased,  if  murdered  at  all,  had  been  murdered 
by  the  prisoner  was  in  the  highest  degree  im- 
probable, considering  how  both  his  hands  must 
have  been  employed,  nor  was  there  any  evidence 
that  the  deceased  had  been  robbed  by  the  prisoner. 
It  thus  appeared,  that  these  accumulated  circum- 
stances, of  supposed  inculpatory  presumption,  were 
really  irrelevant  and  unconnected  with  any  corpus 
delicti  (e).  The  prisoner  was  acquitted  ;  and  it  is 
instructive  that  about  twelve  months  afterwards, 
the  mystery  of  the  robbery,  the  only  real  circum- 
stance of  suspicion,  was  cleared  up.  A  man  was 
apprehended  upon  offering  the  deceased's  watch  for 
sale,  and  brought  to  trial  for  the  theft  of  it,  and 
acquitted,  the  judge  thinking  that  he  ought  not  to 
be  called  upon,  at  so  distant  a  period,  to  account  for 

U)  Rex  V.  Dozuni/rg^  Salop  Sum.  Ass.  1822,  coram  Bayley,  J. 
C.E.  R 


2^2  RULES    OF    EVIDKNCE. 

the  possession  of  the  deceased's  property,  which  he 
might  have  purchased,  or  otherwise  fairly  acquired, 
without  being  aljle  to  pnne  it  by  evidence.  The 
accused,  when  no  longer  in  danger,  acknowledged 
that  he  had  robbed  the  deceased,  whom  he  found 
lying  drunk  on  the  road,  as  he  believed  ;  but  that 
he  had  concealed  the  watch,  on  learning  that  it  was 
supposed  that  he  had  been  murdered,  in  order  to 
prevent  suspicion  from  attaching  to  himself, 

A  farmer  was  tried  under  the  special  commission 
for  Wiltshire,  in  January  1831,  upon  an  indictment 
which  charged  him  with  having  feloniously  sent  a 
threatening  letter,  which  was  alleged  to  have  been 
written  by  him.  That  the  letter  was  in  the  prisoner's 
handwriting  was  positively  sworn  by  witnesses 
who  had  had  ample  means  of  becoming  acquainted 
with  it,  while  the  contrary  was  as  positively  asserted 
on  the  part  of  the  prisoner  by  numerous  witnesses 
equally  competent  to  speak  to  the  fact.  But  the 
scale  appears  to  have  been  turned  by  the  circum- 
stance that  the  letter  in  question,  and  two  others  of 
the  same  kind  sent  to  other  persons,  together  with 
a  scrap  ot  paper  found  in  the  prisoner's  bureau,  had 
formed  one  sheet  of  paper  ;  the  ragged  edges  of  the 
different  portions  exactly  fitting  each  other,  and  the 
water-mark  name  of  the  maker,  which  was  divided 
into  three  parts,  being  perfect  when  the  portions  of 
paper  were  united.  The  jury  found  the  prisoner 
guilty,  and  he  was  sentenced  to  be  transported  for 
life.  The  judge  and  jury  having  retired  for  a  few 
minutes,  during  their  absence  the  prisoner's  son, 
a  youth  about  eighteen  years  of  age,   was  brought 


RULES    OF    EVIDENCE.  243 

to  the  table  by  the  prisoner's  attorney,  and  confessed 
that  he  had  been  the  writer  of  the  letter  in  question, 
and  not  his  father.  He  then  wrote  on  a  piece  of 
paper  from  memory  a  copy  of  the  contents  of  the 
anonymous  letter,  which  on  comparison  left  no  doubt 
of  the  truth  of  his  statement.  The  writinof  was  not  a 
verbatim  copy,  although  it  differed  but  little  ;  and 
the  bad  spelling  of  the  original  was  repeated  in  the 
copy.  The  original  was  then  handed  to  him,  and  on 
being  desired  to  do  so,  he  copied  it,  and  the  writing 
was  exactly  alike.  Upon  the  return  of  the  learned 
judge  the  circumstances  were  mentioned  to  him, 
and  he  had  the  prisoner  tried  upon  a  second  indict- 
ment for  sending  a  similar  letter,  when  the  son 
admitted  in  the  witness  box  writino"  and  sendine  all 
the  three  letters  in  question,  and  the  father  was  at 
once  acquitted.  The  son  was  subsequently  indicted 
for  the  identical  offence  which  had  been  imputed  to 
the  father  :  he  pleaded  guilty,  and  was  sentenced 
to  transportation  for  seven  years.  It  appeared  that 
he  had  had  access  to  the  bureau,  which  was  commonly 
left  open.  The  writing  of  the  letter  constituted  in 
fact  the  corpus  delicti ;  there  having  been  no  other 
evidence  to  inculpate  the  prisoner  as  the  sender  of 
the  letter,  which  would  however  have  been  the 
natural  and  irresistible  inference  if  he  had  been 
the  writer.  The  correspondence  of  the  fragment 
of  paper  found  in  the  prisoner's  bureau  with  the 
letter  in  question,  and  with  the  two  others  of  the 
same  nature  sent  to  other  persons,  was  simply  a 
circumstance  of  suspicion,  but  foreign,  as  it  turned 
out,  to  the  factum  in  question  ;  and  considering 
that   other   persons  had  access  to   the    bureau,    its 

R  2 


244  RULES    OF    EVIDENCE. 

weight  as  a  circumstance  of  suspicion  seems  to  have 
been  overrated  {/). 

But,  perhaps,  the  most  extraordinary  and  instruc- 
tive case  of  this  kind  that  has  ever  occurred  was 
that  of  Abraham  Thornton,  who  was  tried  at  the 
Warwick  Autumn  Assizes,  1817,  before  Mr.  Justice 
Holroyd,  for  the  alleged  murder  of  a  younjj;'  woman, 
who  was  found  dead  in  a  pit  of  water  about  seven 
o'clock  in  the  morning,  with  marks  of  violence  about 
her  person  and  dress,  from  which  it  was  supposed 
that  she  had  been  violated,  and  afterwards  drowned. 
The  deceased's  bonnet  and  shoes  and  a  bundle 
were  found  on  the  bank  of  the  pit.  Upon  the 
grass,  at  a  distance  of  forty  yards,  there  was  the 
impression  of  an  extended  human  figure,  and  a 
large  quantity  of  blood  was  upon  the  ground  near 
the  lower  extremity  of  the  figure,  where  there  were 
also  the  marks  of  large  shoe-toes.  Spots  of  blood 
were  traced  for  ten  yards  in  a  direction  leading 
from  the  impression  to  the  pit,  upon  a  footpath,  and 
about  a  foot  and  a  half  from  the  path  upon  the 
grass  on  one  side  of  it.  When  the  body  was 
found,  there  was  no  trace  of  any  footstep  on  the 
grass,  which  was  covered  with  dew  not  otherwise 
disturbed  than  by  the  blood  ;  from  which  circum- 
stances it  was  insisted  that  the  spots  of  blood  must 
have  fallen  from  the  body  while  being  carried  in 
some  person's  arms.  Upon  the  examination  of  the 
body,  about  half  a  pint  of  water  and  some  duckweed 
were  found   in  the   stomach,    so  that   the   deceased 

{f)  Rexv.  Isaac  Looker,  Rex  v.  E (heard  Looker,  Ann.  Reg.  1831 
(Chr.)  p.  9  ;  and  see  Selections  from  the  charges  of  Mr.  Baron  Alderson 


RULES    OF    EVIDENCE.  245 

must  have  been  alive  when  immersed  in  the  water. 
There  were  lacerations  about  the  parts  of  generation, 
but  nothing  which  miHit  not  have  been  caused  bv 
sexual  intercourse  with  consent.  Soon  after  the 
discovery  of  the  body,  there  were  found  in  a  newly 
harrowed  field  adjoining  that  in  which  the  pit  was 
situate,  the  recent  marks  of  the  right  and  left  foot- 
steps of  the  prisoner  and  also  of  the  footsteps  of  the 
deceased,  which,  from  the  length  and  depth  of  the 
steps,  indicated  that  there  had  been  running  and 
pursuit,  and  that  the  deceased  had  been  overtaken. 
From  that  part  of  the  harrowed  field  where 
the  deceased  had  been  overtaken,  her  footsteps 
and  those  of  the  prisoner  proceeded  together, 
walking  in  a  direction  towards  the  pit  and  the  spot 
where  the  impression  was  found,  until  the  footsteps 
came  within  the  distance  of  forty  yards  from  the 
pit,  when  from  the  hardness  of  the  ground  they 
could  be  no  lon^jer  traced.  The  marks  of  the 
prisoner's  running  footsteps  were  also  discovered  in 
a  direction  leading  from  the  pit  across  the  harrowed 
field  ;  from  which  it  was  contended  that  he  had  run 
alone  in  that  direction  after  the  commission  of  the 
supposed  murder.  The  mark  of  a  man's  left  shoe 
(but  not  proved  to  have  been  the  prisoner's)  was 
discovered  near  the  edge  of  the  pit,  and  it  was 
proved  that  the  prisoner  had  worn  right  and  left 
shoes.  On  the  prisoner's  shirt  and  breeches  were 
found  stains  of  blood,  and  he  acknowledged  that  he 
had  had  sexual  intercourse  with  the  deceased,  but 
alleged  that  it  had  taken  place  with  her  own  consent. 
The  defence  set  up  was  an  alibi,  which,  notwith- 
standing these  apparently  decisive  facts,   was  most 


246  RULES    OF    EVIDENCE. 

satisfactorily  established.  The  prisoner  and  the 
deceased  had  met  at  a  dance  on  the  preceding  evening 
at  a  public-house,  which  they  left  together  ab(jut  mid- 
night. About  three  in  the  morning  they  were  seen 
talking  together  at  a  stile  near  the  spot,  and  about 
four  o'clock  the  deceased  called  at  the  house  of 
Mrs,  Butler,  at  Erdington,  where  she  had  left  a 
bundle  of  clothes  the  day  before.  Here  she  ap- 
peared in  good  health  and  spirits,  changed  a  part  of 
her  dress  for  some  of  the  garments  which  she  had 
left  there,  and  quitted  the  house  in  about  a  quarter 
of  an  hour.  Her  way  home  lay  across  certain  fields, 
one  of  which  had  been  newly  harrowed,  and  adjoined 
that  in  which  the  pit  was  situate.  The  deceased  was 
successively  seen  after  leaving  Mrs.  Butler's  house 
by  several  persons,  proceeding  alone  in  a  direction 
towards  her  own  home,  along  a  public  road  where 
the  prisoner,  if  he  had  rejoined  her,  could  have 
been  seen  for  a  considerable  distance ;  the  last 
of  such  persons  saw  her  within  a  quarter  of  an  hour 
afterwards,  that  is  to  say,  before  or  about  half- 
past  four.  At  about  half-past  four,  and  not  later 
than  twenty-five  minutes  before  five,  the  accused  was 
seen  by  four  persons,  wholly  unacquainted  w^ith  him, 
walking  slowly  and  leisurely  along  a  lane  leading 
in  an  opposite  direction  from  the  young  woman's 
course  towards  her  home.  About  a  mile  from  the 
spot  where  the  prisoner  was  seen,  he  was  seen  by 
another  witness  about  ten  minutes  before  five,  still 
walking  slowly  in  the  same  direction,  with  whom  he 
stopped  and  conversed  for  a  quarter  of  an  hour,  after 
which,  at  twenty-five  minutes  past  five,  he  was 
again    seen    walking    towards    his    father's    house, 


RULES    OF    EVIDENCE.  247 

which  was  distant  about  half  a  mile.  From  Mrs. 
Butler's  house  to  the  pit  was  a  distance  of  upwards 
of  a  mile  and  a  quarter ;  and  allowing  twenty 
minutes  to  enable  the  deceased  to  walk  this  distance, 
would  bring  the  time  of  her  arrival  at  the  pit 
to  twenty-five  minutes  before  five  ;  whereas  the 
prisoner  was  first  seen  by  four  persons  above  all 
suspicion  at  half-past  four  or  twenty-five  minutes 
before  five,  and  the  distance  of  the  pit  from  the 
place  where  he  was  seen,  was  two  miles  and  a 
half. 

Upon  the  hypothesis  of  his  guilt,  the  prisoner 
must  have  rejoined  the  deceased  after  she  left  Mrs. 
Butler's  house,  and  a  distance  of  upwards  of  three 
miles  and  a  quarter  must  have  been  traversed  by 
him,  accompanied  for  a  portion  of  it  by  the  dt-ceased, 
and  the  pursuit,  the  criminal  intercourse,  the  drown- 
ing, and  the  deliberate  placing  of  the  deceased's 
bonnet,  shoes,  and  bundle,  must  have  taken  place 
within  twenty  or  twenty  five  minutes.  The  defence 
was  set  up  at  the  instant  of  the  prisoner's  apprehen- 
sion, which  took  place  within  a  few  hours  after  the 
discovery  of  the  body,  and  was  maintained  without 
contradiction  or  variation  before  the  coroner's  in- 
quest and  the  committing  magistrates,  and  also 
upon  the  trial,  and  no  inroad  was  made  on  the 
credibility  of  the  testimony  by  which  it  was  sup- 
ported. The  various  timepieces  to  which  the  wit- 
nesses referred,  and  which  differed  much  from  each 
other,  were  carefully  compared  on  the  day  after  the 
occurrence  and  reduced  to  a  common  standard,  so 
that  there  could  be  no  doubt  of  the  real  times  as 
spoken  to  by  them.     Thus,  it  was  not  within  the 


248  RULES    OF    EVIDENCE. 

bounds  of  posslhility  lliat  the  prisoner  could  hnve 
commillcd  the  crime;  imputed  to  him  ;  nevertheless, 
public  indignation  was  so  stronj^ly  excited  that 
his  acquittal,  though  it  afforded  a  fine  examjile 
of  the  calm  and  unimpassioned  administration  of 
justice,  occasioned  great  public  dissatisfaction. 

There  was  nevertheless  a  total  absence  of  all 
conclusive  evidence  of  a  corpus  delicti,  which  the 
jury  were  required  to  infer  from  circumstances  of 
apparent  suspicion.  The  deceased  might  have 
drowned  herself,  in  a  moment  of  remorse,  after 
parting  from  her  seducer,  terrified  beyond  control  by 
the  presence  in  the  light  of  day  of  so  many  visible 
marks  of  her  downfall.  It  was  possible  that  she 
might  have  sat  down  to  change  her  dancing  shoes 
for  the  boots  which  she  had  worn  the  preceding 
day  and  carried  in  her  bundle,  and  fallen  into  the 
water  from  exhaustion  ;  for  she  had  walked  to  and 
from  market  in  the  morning,  had  exerted  herself  in 
dancincr  in  the  evening',  and  had  been  wanderinor  all 
night  in  the  fields  without  food.  The  allegation 
that  the  prisoner  had  violated  the  deceased,  and 
therefore  had  a  motive  to  destroy  her,  was  mere 
conjecture  ;  and  from  the  circumstance  of  her  having 
been  out  all  night  with  the  prisoner,  with  whom  she 
was  previously  unacquainted,  and  Irom  the  state  of 
the  garments  which  she  took  off  at  Mrs.  Butler's,  as 
compared  with  those  for  which  she  exchanged  them, 
it  was  clear  that  the  sexual  intercourse  had  taken 
place  before  she  called  there,  at  which  time  she 
made  no  complaint,  but  appeared  composed  and 
cheerful.  Again,  the  inference  contended  for,  from 
the  state  of  the  grass,  with  drops  of  blood   upon   it 


RULES    OF    EVIDENCE.  249 

where  the  dew  had  not  been  disturbed,  was  equally 
groundless  ;  for  there  was  no  proof  that  the  dew 
had  not  been  deposited  after  the  drops  of  blood  ; 
and  it  clearly  appeared  that  the  footsteps  of  the 
prisoner  and  the  deceased  could  not  be  traced  on 
other  parts  of  the  grass  where,  beyond  all  doubt, 
they  had  been  together  in  the  course  of  the  night. 
Now,  suppose  that  the  alibi  had  been  incapable  of 
satisfactory  proof,  that  the  prisoner  had  not  been 
seen  after  parting  from  the  deceased,  and  that  the 
inconclusiveness  of  the  inference  suoorested  from 
the  discovery  of  drops  of  blood  on  the  grass,  where 
there  were  no  footmarks,  had  not  been  manifested 
by  the  absence  of  those  marks  in  other  places  where 
they  had  unquestionably  been  together  in  the  night, 
— the  guilt  of  the  prisoner  would  have  been  con- 
sidered indubitable,  and  his  execution  certain  ;  and 
yet  these  exculpatory  circumstances  were  entirely 
collateral,  and  independent  of  the  facts  which  were 
supposed  to  be  clearly  indicative  of  guilt  [g). 

Two  other  cases,  equally  remarkable,  though  not 
so  well  known,  may  be  instanced  as  instructive 
illustrations  alike  of  the  fallibility  of  human  testi- 
mony, particularly  as    to    identification  of  persons, 

{g)  The  brother  of  the  deceased  brought  an  appeal  of  murder,  in 
which  the  defendant  tendered  wager  of  battle,  and  the  proceedings 
led  to  the  abolition,  by  St.  59  Geo.  III.  c.  46,  of  that  barbarous  relic 
of  feudal  times.  See  Ashford  v.  Thornton,  i  B.  &  Aid.  405  ;  Short- 
hand Rep.,  and  Observations  upon  the  case  of  Abraham  Thornton,  by 
Edward  Holroyd,  Esq.,  where  the  judge's  notes  of  the  evidence  are 
given.  There  is  another  report  of  the  case  and  the  subsequent 
proceedings  in  the  Court  of  King's  Bench,  printed  at  Warwick,  181 8. 
See  also  i  Woodall's  Celebrated  Trials,  p.  i,  and  there  is  an  account 
of  the  case  of  a  more  popular  character,  and  obviously  partial,  in 
6  Celebrated  Trials,  p.  227. 


250  RULES    OF    EVIDENCE. 

and  of  the  fact  that  tlie  most  cogent  circumstances  of 
suspicion  are  sometimes  cap.ible  of  a  [)erlectly  satis- 
factory explanation. 

A  young  man  named  Pook  was  tried  at  the 
Central  Criminal  Court  in  1S71  for  the  murder  of 
Jane  JVIaria  Clousen.  Evidence  was  given  on 
behalf  of  the  Crown  to  the  following  effect.  The 
deceased,  a  girl  of  seventeen,  had  been  servant 
in  the  house  of  the  prisoner's  father  at  Greenwich, 
where  the  prisoner  also  lived.  On  the  iith  of 
April  she  went  to  stay  with  friends.  Cn  Tuesday, 
the  25th  of  April,  she  was  in  High  Street,  Deptford, 
at  6.40.  At  4.15  A.M.  next  day  she  was  found  in  a 
dying  state  in  Kidbrooke  Lane  with  her  head 
beaten  in.  On  the  27th  of  April  a  hammer  covered 
with  blood  and  hair  was  found  near  the  scene  of  the 
murder  in  the  direction  of  prisoner's  home.  A 
metal  v/histle  was  found  about  fifteen  yards  from 
the  scene  of  the  murder,  and  it  was  proved  that 
the  prisoner  was  in  the  habit  of  using  a  similar 
whistle.  The  post-'morte')n  examination  showed 
that  the  girl  was  pregnant.  Several  persons  swore 
that  a  young  man  in  a  dark  coat  and  light  trousers 
bought  a  hammer  similar  to  the  one  produced  at  a 
shop  kept  by  a  man  named  Thomas,  on  Monday, 
the  24th,  at  about  7.45  p.m.,  and  two  of  them 
deposed  that  this  man  was  the  prisoner.  Two 
witnesses  swore  that  on  the  evening  of  Tuesday,  the 
25th  of  April,  they  saw  the  prisoner  in  Kidbrooke 
Lane  in  company  with  a  girl,  one  of  them  at  about 
6.40  P.M.,  the  other  at  about  8.45  p.m.  Two  other 
witnesses  saw  him  running  into  Greenwich  at  about 


RULES    OF    EVIDENCE.  25 1 

9  P.M.  A  few  minutes  later  he  entered  a  shop  at 
Greenwich  in  a  very  hot  and  muddy  condition,  and 
brushed  his  clothes  there.  The  shirt  and  trousers 
worn  by  the  prisoner  on  that  day  had  some  spots  of 
blood  on  them.  Some  time  between  the  23rd  and 
30th  of  April,  he  had  shaved  off  his  moustache,  and 
had  told  some  girls  he  had  done  so  for  some  private 
theatricals,  which  was  untrue.  On  Sunday,  the 
23rd  of  April,  he  had  told  the  same  girls  that  he 
was  going  to  London  on  the  Tuesday  evening, 
whereas  his  defence  was  that  he  had  gone  to 
Lewisham.  It  may  be  remarked  that  this  evi- 
dence, if  unanswered,  contains  all  the  elements 
necessary  for  a  complete  circumstantial  proof; 
the  corpus  delicti,  motive,  possession  of  the  means 
of  crime,  other  inculpatory  facts  such  as  the  whistle, 
spots  of  blood  on  his  clothes,  identification  near 
the  scene  on  the  night  in  question,  and  his  run- 
ning home  ;  there  was  also  evidence  of  falsehoods 
told  as  to  his  intended  movements  upon  the 
night  in  question,  with  a  suggested  attempt  at 
disouise. 

The  evidence  for  the  defence  was  equally  com- 
plete. Prisoner  was  subject  to  fits,  and  was  con- 
stantly watched  by  his  family,  and  they  saw  no  signs 
of  any  intimacy  which  would  supply  the  motive 
suggested  for  the  murder.  On  the  evening  of 
Monday,  24th,  prisoner  was  with  his  brother 
the  whole  evening  and  did  not  go  to  Thomas's 
shop.  Thomas's  books  only  showed  the  sale 
of  one  hammer  that  day  or  near  it,  and  the  pur- 
chaser was  called.  The  prisoner  never  had  a 
pair  of  light  trousers  in  his  life,  and  was   shown  to 


252  RULES    OF    EVIDEN'CE. 

hiive  had  liis  whistle  after  the  murder.  Mis  whole 
family  saw  him  at  home  on  Tuesday  eveniiiL;  till 
about  7.20,  and  again  soon  after  9.  Several  inde- 
pendent witnesses  saw  him  on  Lewisham  Bridge 
from  about  8.0  till  8.30.  According  to  the  defence 
he  had  gone  there  to  meet  his  sweetheart,  who  had 
failed  to  come,  and  after  waiting  about  forty- 
minutes,  he  had  run  back  to  Greenwich,  arriving 
there  by  nine  o'clock.  The  blood  on  his  clothes 
was  reasonably  accounted  for,  one  witness  had 
noticed  it  on  his  shirt  on  the  day  preceding  the 
murder.  He  had  shaved  his  moustache  four  days 
after  the  murder  and  it  had  not  sufficiently  changed 
his  appearance  to  effect  any  disguise.  Having  had 
some  flirtation  with  one  of  the  girls  called,  he 
naturally  would  not  say  he  was  going  to  Lewisham 
after  another  young  woman.  The  prisoner  was 
acquitted  {Ji). 

A  German  named  Franz  was  indicted  for  the 
murder  of  Martha  Halliday.  Deceased  was  the 
caretaker  of  Kingswood  Rectory,  four  miles  from 
Reigate.  On  Monday,  the  loth  of  June,  1861,  she 
was  left  alone  in  the  house  after  about  6  p.m.  Next 
morning  she  was  found  dead  on  the  floor  of  her 
bedroom  in  her  night-dress.  Eleath  was  caused  by 
suffocation,  a  stocking  having  been  thrust  into  her 
mouth  apparently  as  a  gag.  Her  hands  and  feet 
had  been  tied  with   a   peculiar   kind   of  cord.       No 

(A)  Reg.  V.  Pook,  coratn  Bovill,  L.C.J.,  C.C.C.  1871.  See  Times,  July 
13-17,  1871,  and  Pook\.  Crosltmd^  Times,  February  2  and  3,  1872. 
As  in  Thornton's  case,  popular  feeling  ran  very  high  against  Pook— 
largely  in  consequence  of  sensational  anticipations  of  the  evidence  in 
the  newspapei's. 


RULES    OF    EVIDENCE.  253 

property  was  missing,  the  thieves  having  probably 
been  disturbed.  Footprints  outside  showed  that 
two  men  had  made  several  attempts  to  get  into  the 
house,  finally  entering  by  the  window  of  the 
deceased's  bedroom.  Near  the  body  was  found  a 
packet  of  papers  consisting  of  certificates  of  birth 
and  baptism,  and  a  passport,  all  belonging  to  the 
prisoner,  and  containing  his  personal  description  ; 
also  a  begging  letter  signed  Adolphe  Krohn,  a 
letter  from  Mile.  Tietjens,  the  singer,  and  a  list  of 
addresses.  In  the  room  was  found  a  rou^rh  stick 
broken  off  a  tree.  Early  in  July  the  prisoner  was 
arrested  in  London,  where  he  was  passing  under  a 
false  name.  Evidence  was  given  for  the  prosecu- 
tion to  the  following  effect  :  About  noon  on  Sun- 
day, the  9th  of  June,  two  foreigners  took  lodgings 
at  "  The  Cricketers,"  at  Reigate.  On  Monday,  the 
lolh  of  June,  they  purchased  a  ball  of  cord  of 
peculiar  make,  the  same  as  that  with  which  the 
deceased  woman  had  been  bound.  Another  piece 
of  the  same  kind  was  found  tied  round  a  shirt  left 
by  the  prisoner  at  his  London  lodgings  when  he 
was  arrested.  This  cord  was  so  unusual  that  it 
could  not  be  matched  except  at  the  Reigate  shop 
and  at  the  maker's.  Various  persons  identified  the 
prisoner  more  or  less  positively  as  one  of  the  two 
foreigners  at  Reigate.  He  was  the  taller  and  fairer, 
the  other  was  short  and  dark.  At  4  p.m.  on  the 
Monday  (loth  of  June)  the  foreigners  left  "The 
Cricketers."  Later  that  day  they  were  seen  going 
from  Reigate  towards  Kingswood  ;  about  7  p.m.  two 
men  who  spoke  a  foreign  language  were  seen  about  a 
mile  from  Kingswood   Rectory  under  a  beech-tree, 


254  RULES    OF    EVIDENXE. 

which  corresponded  with  the  broken  stick  found. 
At  about  the  same  time  two  foreigners  were  seen 
going  from  the  beech-tree  towards  the  Rectory,  but 
the  witness  who  met  them  declared  that  he  had 
met  the  same  two  men  at  an  hour  on  Sunday  after- 
noon when  the  Reigate  foreigners  were  undoubtedly 
at  "The  Cricketers." 

No  evidence  of  an  alibi  was  forthcoming,  though 
the  prisoner  professed  to  have  been  in  London  at 
the  date  of  the  murder.  The  story  he  told  the 
police  on  the  8th  of  July  was  as  follows.  He  had 
landed  at  Hull  and  set  out  to  walk  to  London. 
On  the  wav  he  had  fallen  in  with  two  compatriots, 
one  of  whom  was  named  Adolphe  Krohn,  the 
other  William  Gerstenberg,  who  was  about  prisoner's 
height  and  colour  and  who  kept  importuning  him 
to  give  him  papers  of  identification.  Prisoner 
refused,  but  one  night  while  he  was  asleep,  the 
other  two  went  off  with  his  bag,  containing  his 
papers  and  a  suit  of  clothes  like  those  that  he  was 
wearing.  The  papers  included  those  found  at 
Kingswood  and  also  a  testimonial  and  a  certificate  of 
confirmation.  On  arriving  in  London  he  learned 
from  the  newspapers  that  he  was  accused  of  murder, 
and  in  alarm  changed  his  name.  In  support  of  this 
story  it  was  proved  by  independent  evidence  that 
on  the  9th  of  July  a  tramp  brought  to  a  local  J. P. 
the  testimonial  and  certificate  mentioned  by  prisoner, 
with  his  diary  from  his  landing  in  Hull  till  he  lost 
his  bag.  They  were  picked  up  in  Northampton- 
shire. It  was  also  shown  that  he  had  arrived  in 
Hull  with  a  bag,  but  had  none  when  apprehended. 
Mile.   Tietjens   had  given  her  letter  to  a  German 


RULES    OF    EVIDENCE.  255 

calling  himself  Adolphe  Krohn,  who  resembled  the 
prisoner  but  was  not  the  same  man.  Prisoner 
stated  that  the  piece  of  cord  with  which  his  shirt 
was  tied  up  was  picked  up  by  him  near  his  lodgings 
in  Whitechapel.  This  was  close  to  the  factory 
where  it  was  made,  and  other  cord  like  it  was 
picked  up  at  the  same  spot  by  a  witness  called  for 
the  defence.      The  prisoner  was  acquitted  (/). 

Rule  2, —  The  btwden  of  proof  is  akvays  on  the 
pat'ty  who  asserts  the  existence  of  any  fact  zvhich 
infers  lec^al  accountability  (/(').  This  is  a  universal 
rule  of  jurisprudence,  founded  upon  evident  principles 
of  justice  ;  and  it  is  a  necessary  consequence,  that 
the  affirmant  party  is  not  absolved  from  its  obligation 
because  of  the  difficulty  which  may  attend  its 
application.  No  man  can  be  justly  deprived  of 
his  social  rights  without  proof  chat  he  has  com- 
mitted some  act  which  legally  involves  the  forfeiture 
of  them.  The  law  respects  the  status  in  qiio,  and 
regards  every  man  as  legally  innocent  until  the 
contrary  be  proved.  To  prove  a  negative  is  in 
most  cases  difficult,  in  many  impossible.  Criminality 
therefore  is  never  to  be  presumed.  But  neverthe- 
less the  operation  of  this  rule  may,  to  a  certain 
extent,  be  modified  by  circumstances  which  create 
a  counter-obligation,  and  shift  the  omis  probandi. 
Lord  Brougham,  speaking  of  principles  that  were 
applicable    to    all   cases,    but    especially  to  such  as 

{i)  Reg.  V.  Franz,  Croydon  Summer  Assizes,  l86l,  coratn  Black- 
burn, J.     See  Times,  August  7,  1861.     Ann.  Reg.  1861,  p.  138. 

{k)  I  Starkie's  L.  of  Ev.  162  ;  i  Greenleaf's  L.  of  Ev.  pt.  ii.  c.  3.  The 
proposition  is  equally  true  of  every  fact  whether  implying  responsibility 
or  not. 


256  RULES    OF    EVIDENCE. 

rest  u{)on  circumstantial  evidence,  said  that  "  the 
burthen  of  the  proof  often  shifts  about  from  one  party 
to  the  other  in  the  process  of  a  cause,  according  as 
the  successive  steps  of  the  inquiry,  by  leading  to 
inferences  decisive  until  rebutted,  cast  on  one  or 
the  other  party  the  necessity  of  protecting  himself 
from  the  consequences  of  such  inferences"  (/).  It 
follows,  from  the  very  nature  of  circumstantial 
evidence,  that,  in  drawing  an  inference  or  con- 
clusion as  to  the  existence  of  a  particular  fact  from 
other  facts  that  are  proved,  regard  must  always  be 
had  to  the  nature  of  the  pirticular  case,  and  the 
facility  that  appears  to  be  afforded  either  of  explana- 
tion or  contradiction  [m).  Lord  Ellenborough  said 
that  no  person  accused  of  crime  is  bound  to  offer 
any  explanation  of  his  conduct,  or  of  circumstances 
of  suspicion  which  attach  to  him  ;  but  nevertheless, 
if  he  refuse  to  do  so,  where  a  strong  priuid  facie 
case  has  been  made  out,  and  when  it  is  in  his  own 
power  to  offer  evidence,  if  such  exist,  in  explana- 
tion of  such  suspicious  appearances,  which  would 
show  them  to  be  fallacious  and  explicable  consis- 
tently with  his  innocence,  it  is  a  reasonable  and 
justifiable  conclusion  that  he  refrains  from  doing  so 
only  from  the  conviction  that  the  evidence  so 
suppressed  or  not  adduced  would  operate  adversely 
to  his  interest  (/z).  It  is  therefore  a  qualification  of 
the  rule  in  question,  that  "  in  every  case  the  onus 
probandi  lies  on  the    person   who   is  interested  to 


(/)   Waring  \.  Waring,  6  Moore's  P.  C.  Rep.  at  p.  355. 
(;«)   /"^r  Abbott  L.C.J,  in  Rex  v.  Burdett,  4  B.  &  Aid.  161. 
{n)  Rexv.  Lord  Cochrane  and  others^  1814,  Shorthand  Report   by 
Gurney.     See  p.  99  supra. 


RULES    OF    EVIDENCE.  257 

support  his  case  by  a  particular  fact,  which  lies 
more  particularly  within  his  own  knowledge,  or  of 
which  he  is  supposed  to  be  cognizant.  This  indeed 
is  not  allowed  to  supply  the  want  of  necessary  proof, 
whether  direct  or  presumptive,  against  a  defendant, 
of  the  crime  with  which  he  is  charged  ;  but  when 
such  proof  has  been  given,  it  is  a  rule  to  be  applied 
in  considering  the  weight  of  the  evidence  against 
him,  whether  direct  or  presumptive,  when  it  is  un- 
opposed, unrebutted,  or  not  weakened  by  contrary 
evidence,  which  it  would  be  in  the  defendant's 
power  to  produce,  if  the  fact  directly  or  presump- 
tively proved  were  not  true"  [0).  It  has  been  well 
observed,  that  in  such  case  we  have  something  like 
an  admission  that  the  presumption  is  just  (/>).  "  In 
drawing  an  inference  or  conclusion,  from  facts 
proved."  said  Lord  Chief  Justice  Abbott  (^),  "  regard 
must  always  be  had  to  the  nature  of  the  particular 
case,  and  the  facility  that  appears  to  be  afforded 
either  of  explanation  or  of  contradiction.  No 
person  is  to  be  required  to  explain  or  contradict, 
until  enough  has  been  proved  to  warrant  a  reason- 
able and  just  conclusion  against  him,  in  the  absence 
of  explanation  or  contradiction  ;  but  when  such 
proof  has  been  given,  and  the  nature  of  the  case  is 
such  as  to  admit  of  explanation  or  contradiction,  if 
the  conclusion  to  which  the  proof  tends  be  untrue, 
and  the  accused  offers  no  explanation  or  contradic- 
tion, can  human  reason  do  otherwise  than  adopt 
the    conclusion    to   which   the  proof   tends  ?      The 

(<?)  Per  Holroyd,  J.,  in  J^cx  v.  Burdctf^  4  B.  &  Aid.  140 

{p)  /'(fr  Best,  J.   ib.  122. 

{q)  Ibid.  161  ;  and  see  the  language  of  Bayley,  J.,  ib.  150. 

:.E.  s 


258  RULES    OF    EVIDENCE. 

premises  may  lead  more  or  less  strongly  to  the 
conclusion,  and  care  must  be  taken  not  to  draw  the 
conclusion  hastily ;  but  in  matters  that  regard  the 
conduct  of  men,  the  certainty  of  mathematical 
demonstration  cannot  be  required  or  expected  ;  and 
it  is  one  of  the  peculiar  advantages  of  our  juris- 
prudence, that  the  conclusion  is  to  be  drawn  by  the 
unanimous  judgment  and  conscience  of  twelve  men 
conversant  with  the  affairs  and  business  of  life,  and 
who  know  that  where  reasonable  d(3ubt  is  enter- 
tained, it  is  their  duty  to  acquit  ;  and  not  of  one  or 
more  lawyers,  whose  habits  might  be  suspected  of 
leading  them  to  the  indulgence  of  too  much  subtlety 
and  refinement."  To  the  same  effect  Lord  Chief 
Justice  Tindal,  on  a  trial  for  high  treason,  said,  that 
"the  offence  charged  against  the  prisoner  must  be 
proved  by  those  who  make  the  charge.  The  proof 
of  the  case  against  the  prisoner  must  depend  for  its 
support  not  upon  the  absence  or  want  of  any 
explanation  on  the  part  of  the  prisoner  himself,  but 
upon  the  positive  affirmative  evidence  of  the  guilt 
that  is  given  by  the  Crown.  It  is  not  however  an 
unreasonable  thing,"  said  the  learned  judge,  "  and  it 
daily  occurs  in  investigations,  both  civil  and  criminal, 
that  if  there  is  a  certain  appearance  made  out 
against  a  party,  if  he  is  involved  by  the  evidence  in 
a  state  of  considerable  suspicion,  he  is  called  upon 
for  his  own  sake  and  his  own  safety  to  state  and 
bring  forward  the  circumstances,  whatever  they 
may  be,  which  might  reconcile  such  suspicious 
appearances  with   perfect  innocence  (7-),"      But  this 

(r)  Reo-.  V.  Frost,  Monmouth  Sp.  Comm.  Jan.  1840,  Gurney's 
Shorthand  Report,  689  ;  and  see  the  language  of  Lord  Ellenborough 
in  Rex  v.  Dcspard,  28  St.  Tr.  521  ;  and  in  Rex  v.  Watso7i^  32  ib.  583. 


RULES    OF    EVIDENCE  259 

doctrine,  it  has  been  well  observed,  is  to  be 
cautiously  applied,  and  only  in  cases  where  it  is 
manifest  that  proofs  are  in  the  power  of  the  accused, 
not  accessible  to  the  prosecution  [s). 

It  is  a  necessary  consequence  of  this  rule,  rather 
than  a  substantive  rule,  that  the  corpus  delicti  must 
be  clearly  proved  before  any  effect  is  attached  to  cir- 
cumstances supposed  to  be  inculpatory  of  a  particular 
individual  ;  but  this  is  a  branch  of  the  subject  of  so 
much  importance  and  of  such  comprehensive  extent, 
as  to  require  consideration  in  a  separate  chapter. 

Rule  3. — hi  all  cases,  whether  of  direct  or  cir- 
cumstantial evidenc<' ,  the  best  evidence  must  be  adduced 
zvkich  the  nature  of  the  case  admits.  The  suppres- 
sion or  non-production  of  pertinent  and  cogent  evi- 
dence necessarily  raises  a  strong  presumption  against 
the  party  who  withholds  such  evidence  when  he  has 
it  in  his  power  to  produce  it  ;  of  which  some  inter- 
esting exemplifications  appear  in  other  parts  of  this 
Essay  if).  This  rule  applies  a  fortiori  to  circum- 
stantial evidence,  a  kind  of  evidence  which,  for 
reasons  which  have  been  already  urged,  is  in- 
herently inferior  to  direct  and  positive  testimony  ; 
and  therefore  whenever  such  evidence  is  capable  of 
being  adduced,  the  very  attempt  to  substitute  a 
description  of  evidence  not  of  the  same  degree  of 
force,  necessarily  creates  a  suspicion  that  it  is  with- 
held from  corrupt  and  sinister  motives  (?/).      Nor  is 

(j)  Per  Shaw,  C.  J.,  in  Prof.  Webster's  Case,  Bemis's  Report,  p.  467  ; 
see  p.  109,  supra,  for  other  references  to  this  case. 
(/)  See  Ch.  iii.,  ss.  5,  7,  pp.  81  and  1 1 1,  supra.         (u)  See  p.  37  supra- 


26o  RULES    OF    EVIDENCE. 

the  application  of  the  rule  confined  to  the  j)roof  of 
the  principal  fact  ;  it  is  "  the  master  rule  which 
governs  all  the  subordinate  rules  "  (x)  and  applies 
alike  to  the  proof  of  every  individual  constituent 
fact,  whether  principal  or  subordinate.  Thus,  in 
a  trial  for  murder,  Mr.  Baron  IMaule  refused  to 
receive  evidence  of  the  contents  of  a  coffin-plate  in 
order  to  establish  the  identity  of  the  deceased,  on 
the  ground  that,  being  removable,  it  might  have 
been  produced,  and  there  being  no  other  case  of 
identity,  stopped  the  case  (y).  The  rule  is  however 
necessarily  relaxed  where  its  application  becomes 
impracticable  by  the  act  of  the  party  who  would 
otherwise  be  entitled  to  claim  its  protection  ;  as 
where  a  witness  is  kept  out  of  the  way  by  or  on  his 
behalf  {2),  or  where  a  deed  or  other  instrument  in 
his  possession  is  withheld  by  him  after  notice  to  pro- 
duce (a).  Similarly  the  rules  of  law  allow  secondary 
instead  of  primary  evidence  to  be  given  where,  from 
circumstances  over  which  neither  party  has  control, 
the  production  of  the  primary  evidence  is  actually 
or  practically  impossible,  as  where  an  original  docu- 
ment has  been  lost,  or  is  of  such  a  nature  that  it 
cannot  reasonably  be  moved,  such  as  an  inscription 
on  a  tombstone  or  a  writing  on  a  wall  (d).  On  like 
principles,    it   is    enacted  by  statute   that  w^here  a 

(x)  Burke's  Works  :  Report  of  the  Committee  of  the  House  of 
Commons  appointed  to  inspect  the  Lords'  Journals  in  relation  lo 
their  proceeding  in  the  trial  of  Warren  Hastings,  Esquire,  under 
the  heading,  "  Debates  on  Evidence."  Ed.  Riving  ton,  1822, 
vol.  xiv.,  p.  377.  (j')  Reg.  V.  Edge.,  Chester  Spr.  Ass.  1842. 

{z)  Hawk.  P.  C.  Bk.  2.  c.  _;6.  s.  15  ;  Reg.  v,  Scaife,  20  L.  J.,  M.  C, 
229  ;  17  Q.  B.,  238.     See  Rex  v.  Harrison.,  12  St.  Tr.  at  col.  852. 

{a)  Rex  v.  Hunter.,  3  C.  &  P.  591  ;  4  ib.,  128  ;  Rex  v.  Haiuortk,  4G 
&  P.  254  ;  and  see  Ch.  iii.  s.  7,  p.  1 1 1,  supra. 

{b)  Mortimer  v.  McCallan,  6  M.  &  W.,  67. 


RULES    OF    EVIDENCE.  26 1 

Witness  is  dead,  or  too  ill  to  travel,  his  deposition  may 
be  read  to  the  jury  (c). 

Considering,  moreover,  the  inherent  infirmity  of 
human  memory,  in  the  fair  construction  and  appli- 
cation of  this  rule,  evidence  ought  in  all  criminal 
cases,  and  a  fortiori  in  cases  of  circumstantial 
evidence,  to  be  received  with  caution,  wherever  any 
considerable  time  has  elapsed  since  the  commission 
of  the  alleged  offence.  The  justice  and  efficacy  of 
punishment,  and  more  especially  of  capital  punish- 
ment, inflicted  after  the  lapse  of  any  considerable 
interval,  at  least  where  the  offender  has  not  with- 
drawn himself  from  the  reach  of  justice,  are  often 
questionable  {d).  An  unavoidable  consequence  of 
great  delay  is,  that  the  party  is  deprived  of  the 
means  of  vindicating  his  innocence,  or  of  proving 
the  attendant  circumstances  of  extenuation  ;  the 
crime  itself  becomes  foro-otten,  or  is  remembered 
but  as  matter  of  tradition,  and  the  offender  may 
have  become  a  different  moral  being  :  in  such  cir- 
cumstances punishment  can  seldom,  perhaps  never, 
be  efficacious  for  the  purpose  of  example.  On  these 
accounts  judges  and  juries  are  now  always  reluctant 
to  convict  parties  charged  with  offences  committed 
long  previously. 

{c)  The  Indictable  Ofifences  Act,  1848  (11  &  12  Vict.  c.  42,  s.  17; 

{d)  See  Rex  V.  Home,  executed  at  Nottingham  in  1759,  for  the 
murder  of  his  natural  child  forty  years  before  ;  4  Celebrated  Trials, 
396  ;  and  Rex  v.  Wall,  28  St.  Tr.  51,  whose  execution  took  place  after 
the  lapse  of  twenty  years  from  the  commission  of  the  offence  ;  and 
see  the  strictures  of  Lord  Campbell  on  this  case,  Lives  of  the  Chief 
Justices,  vol.  iii.,  p.  147,  and  Rex  v .  Roper,  Leicester  Sum.  Ass.  1836. 
Roper  was  tried  for  a  murder  committed  34  years  before,  but  was 
acquitted  on  the  ground  that  he  had  made  a  mere  mad  confession. 
See  Ann.  Reg.  1836,  p.  285. 


262  RULES    OF    EVIDENCE. 

Rule  4. — In  07'dcr  to  justify  the  infei-ence  of  guilty 
the  inc2ilpatory  facts  must  be  incompatible  with  the 
innocence  of  the  accused,  and  incapable  of  explanation 
upon  any  other  reasonable  hypothesis  than  that  of  his 
gtctlt.  This  is  the  fundamental  rule,  the  expcrimcntuni 
crucis  by  which  the  relevancy  and  effect  of  circum- 
stantial evidence  must  be  estimated.  The  awards 
of  penal  law  can  be  justified  only  when  ihe  strength 
of  our  convictions  is  equivalent  to  moral  certainty  ; 
which,  as  we  have  seen,  is  that  state  of  the  judg- 
ment, grounded  upon  an  adequate  amount  of  appro- 
priate evidence,  which  induces  a  man  of  sound  mind 
to  act  without  hesitation  in  the  most  important  con- 
cerns of  human  life.  In  cases  of  direct  credible 
evidence,  that  degree  of  assurance  immediately 
and  necessarily  ensues  ;  but  in  estimating  the  effect 
of  circumstantial  evidence,  there  is  of  necessity 
an  ulterior  intellectual  process  of  inference  which 
constitutes  an  essential  element  of  moral  certainty. 
The  most  important  part  of  the  inductive  process, 
especially  in  moral  inquiries,  is  the  correct  exercise 
of  the  judgment  in  drawing  the  proper  inference 
from  the  known  to  the  unknown,  from  the  facts 
proved  to  the  facttwi  probandum.  A  number  of 
secondary  facts  of  an  inculpatory  moral  aspect  being 
given,  the  problem  is,  to  discover  their  causal  moral 
source,  not  by  arbitrary  assumption,  but  by  the 
application  of  the  principles  of  experience  in  relation 
to  the  immutable  laws  of  human  nature  and  con- 
duct. It  is  not  enough,  however,  that  a  particular 
hypothesis  will  explain  all  the  phenomena  ;  nothing 
must  be  inferred  merely  because,  if  true,  it  would 
account  for  the  facts ;  and  if  the  circumstances  are 


RULES    OF    EVIDENCE.  263 

equally  capable  of  solution  upon  any  other  reason- 
able hypothesis,  it  is  manifest  that  their  true  moral 
cause  is  not  exclusively  ascertained,  but  remains  in 
uncertainty  ;  and  they  must  therefore  be  discarded 
as  conclusive  presumptions  of  guilt.  Every  other 
reasonable  supposition  by  which  the  facts  may  be 
explained  consistently  with  the  hypothesis  of  inno- 
cence must  therefore  be  rigorously  examined  and 
successively  eliminated  ;  and  only  when  no  other 
supposition  will  reasonably  account  for  all  the  con- 
ditions of  the  case,  can  the  conclusion  of  guilt  be 
legitimately  adopted  (e).  In  a  case  before  the  Court 
of  Justiciary  at  Edinburgh,  the  Lord  Justice  Clerk 
Cockburn  said  that  the  matter  might  remain  most 
mysterious,  wholly  unexplained  ;  they  might  not  be 
able  to  account  for  it  on  any  other  supposition  than 
that  of  the  prisoner's  guilt ;  but  that  still  that  sup- 
position or  inference  might  not  be  a  ground  on 
which  they  could  safely  and  satisfactorily  rest  their 
verdict  against  her  {/).  It  seems,  however,  hardly 
possible  to  conceive  of  such  a  state  of  facts,  unless 
somewhere  in  the  chain  of  evidence  some  serious 
link  was  wanting  ;  so  that  the  proved  facts  although 
consistent  so  far  as  they  went  only  with  guilt,  still 
failed  to  establish  it.  If  however  the  hypothesis 
fulfils  the  required  conditions,  the  conclusion  is  no 
longer  a  gratuitous  assumption,  but  becomes,  as  it 
were,  part  of  the  induction  ;  and  an  additional  test 
is  obtained,  by  which,  as  by  the  application  of  a 
theorem  of  verification,  the  conclusion  may  be 
tested,   and,   if   true,    corroborated  and  confirmed  ; 

(<?)  See  Traite  de  la  Preuve.     Par  Mittermaier,  Ch.  59. 
{/)  Reg.  V.  Madeleine  Smith,  see  pp.  300-310,  infra. 


264  RULES    OF    EVIDENCE. 

since,  if  It  1:)C  true,  It  must  h.irnionisc  w  Iili.  and 
satisfactorily  account  lor,  all  the  facts,  to  the  ex- 
clusion of  every  other  reasonable  hypothesis.  In 
accordance  with  these  sound  principles  of  reason- 
ing' and  inference,  Lord  Chief  Baron  Macdonald 
said  that  he  had  ever  understood  the  rule  as  to 
clrcumsianlial  evidence  to  In;  that  where  the  circum- 
stances are  true,  where  they  are  well  connected, 
where  they  support  each  other  in  a  clear  and  lucid 
manner,  and  where  they  cannot  reasonably  be 
accounted  for  unless  the  charge  be  true  that  is 
imputed  to  the  prisoner,  then  the  jury  were  justified 
in  convicting  upon  that  evidence  {^).  On  another 
occasion  the  same  learned  judge  said  that  the  nature 
of  circumstantial  evidence  was  this,  that  the  jury 
must  be  satisfied  that  there  is  no  rational  mode  of 
accounting  for  the  circumstances,  but  upon  the  sup- 
position that  the  prisoner  is  guilty  (/i).  Mr.  Baron 
Alderson,  with  more  complete  exactness,  said,  that 
to  enable  the  jury  to  bring  in  a  verdict  of  guilty,  it 
was  necessary,  not  only  that  it  should  be  a  rational 
conviction,  but  that  it  should  be  the  only  rational 
conviction  which  the  circumstances  would  enable 
them  to  draw  (/).  In  Humphreys'  case.  Lord 
Meadowbank  said  to  the  jury,  "  Your  duty  is  to 
consider  what  is  the  reasonable  inference  to  be 
drawn  from  the  whole  circumstances  ;  in  short, 
whether  it  is  possible  to  explain  the  circumstances 
upon  grounds  consistent  with  the  innocence  to  the 
panel,  or  whether,  on  the  contrary,  they  do  not 
necessarily  lead  to  a  result  directly  the  reverse  "  (/^). 

(£■)  Rex  V.  Smithy  for  arson,  see  p.  39,  supra. 

(Ji)  Rexv.  Patch,  Surrey  Spr.  Ass.  1805.     See  pp.  390  395,  i?i/ra 

(j)  Rex  V.  Hodges,  2  Lewin,  C.  C.  227. 

{k)  Swinton's  Rep.,  p.  353.     See  p.  201,  supra. 


RULES    OF    EVIDENCE.  265 

It  follows,  as  a  consequence  of  this  rule,  that 
wherever  several  persons  are  jointly  charged  with 
any  offence,  either  the  joint  complicity  of  all  must 
be  proved,  or  it  must  be  left  in  no  doubt  which  out 
of  two  or  more  actually  committed  the  offence.  In 
the  case  of  the  two  Mannings  their  counsel  severally 
endeavoured  to  throw  the  guilt  exclusively  on  the 
other ;  and  Lord  Chief  Baron  Pollock  told  the 
jury  that  if  they  thought  one  of  the  prisoners  was 
guilty,  but  could  not  possibly  decide  which  was  the 
guilty  party,  they  might  be  reduced  to  the  alter- 
native of  returning  a  verdict  of  not  guilty  as  to 
both  ;  but,  that  if,  looking:  at  the  whole  transaction, 
they  came  to  the  conclusion  that  both  must,  accord- 
ing to  the  ordinary  course  of  human  affairs,  have 
been  concerned  in  the  murder,  it  would  be  their 
duty  to  find  both  the  prisoners  guilty  (/}. 

A  learned  author  thinks  that  almost  all  writers 
have  attempted  to  estimate  the  force  of  evidence 
upon  a  wrong  principle  ;  that  the  true  principle  is 
to  estimate  its  value  entirely  by  the  effect  which  it 
does  in  fact  produce  upon  the  minds  of  those  who 
hear  it,  and  that  the  value  of  evidence  is  measured 
as  exactly  by  the  state  of  mind  which  it  produces, 
as  a  force  is  measured  by  the  weight  which  it  will 
lift  (/;/).  But,  not  to  dwell  upon  the  fallacy  of  every 
attempt  to  compare  the  conclusions  of  moral  reason- 
ing with  the  constrained  and  inevitable  consequence 
of  mechanical  force,  this  would  be  to  give  up  a  safe, 
practical,    and     philosophic    test,    the    validity    and 

(/)  Reg.  V.  Manning  and  Wife.,  C.  C.  C,  Oct.  1849  (for  murder), 
(7;/)   See   an   able  and    interesting  essay  on   the  characteristics  ol 
EngHsh  Law,  Camb.  Ess.  1857,  p.  27. 


266  RULES    OF    EVIDENCE. 

sufficiency  of  which  are  recognised  in  every  other 
branch  of  philosophical  and  scientific  research,  for 
an  indeterminate  and  empirical  standard  incapable  of 
independent  verification,  and  would  virtually  justify 
the  most  erroneous  determinations  of  the  tribunals. 
One  reason  why  hearsay  evidence  is  excluded  is 
that  it  is  very  often  calculated  to  produce,  and,  if 
admitted,  certainly  would  often  produce,  with  persons 
unaccustomed  to  weigh  evidence,  an  effect  wholly 
unjustifiable. 

Rule  5. — If  there  be  any  reasonable  doubt  of  the 
ginlt  0/  the  accused,  he  is  entitled  as  of  right  to  be 
acquitted.  In  other  words,  there  must  be  no 
uncertainty  as  to  the  reality  of  the  connection  of 
the  circumstances  of  evidence  with  the  factum 
probandum,  or  as  to  the  sufficiency  of  the  proof  of 
the  coT-pus  delicti,  or,  supposing  those  points  to  be 
satisfactorily  established,  as  to  the  personal  com- 
plicity of  the  accused.  This  is  in  strictness  hardly 
so  much  a  distinct  rule  of  evidence  as  a  consequence 
naturally  flowing  from,  and  virtually  comprehended 
in,  the  preceding  rules.  Indeed,  it  is  more  properly 
a  test  of  the  right  application  of  those  rules  to  the 
facts  of  the  particular  case.  The  necessity  and 
value  of  such  a  test  are  manifest  from  the  considera- 
tion of  the  numerous  fallacies  incidental  to  the  for- 
mation of  the  judgment  on  indirect  evidence  and 
contingent  probabilities,  and  from  the  impossibility 
in  all  cases  of  drawing  the  line  between  moral 
certainty  and  doubt.  In  questions  of  civil  right  the 
tribunal  will  often  decide  according-  to  the  greatest 
amount  of  probability  in  favour  of  one  or  the  other  of 


RULES    OF    EVIDENCE.  267 

the  litigant  parties  ;  but  where  life  or  liberty  are  in 
the  balance,  it  is  neither  just  nor  necessary  that  the 
accused  should  be  convicted  but  upon  conclusive 
evidence  {71).  While  it  is  certain  that  circumstantial 
evidence  is  frequently  most  convincing  and  satis- 
factory, it  must  never  be  forgotten,  as  was  remarked 
by  that  wise  and  upright  magistrate.  Sir  Matthew 
Hale,  that  "  persons  really  innocent  may  be  en- 
tangled under  such  presumptions,  that  many  times 
carry  great  probabilities  of  guilt  (o)  "  ;  wherefore,  as 
he  justly  concludes,  "this  kind  of  evidence  must  be 
very  warily  pressed."  Many  adverse  appearances 
may  be  outweighed  by  a  single  favourable  one,  and 
all  the  probabilities  of  the  case  may  not  be  before 
the  court.  The  Lord  Justice  Clerk  Cockburn,  in 
his  charge  in  the  case  of  Madeleine  Smith,  before 
mentioned,  said,  "  I  wish  you  to  keep  in  mind  that 
although  you  may  not  be  satisfied  with  any  of  the 
theories  that  have  been  propounded  on  behalf  of 
the  prisoner,  still  nevertheless  the  case  for  the  prose- 
cution may  be  radically  defective  in  evidence  "  (/). 
It  is  safer,  therefore,  as  wisely  said  by  Sir  Matthew 
Hale,  to  err  in   acquitting  than  in   convicting,  and 

(«)  This  sentence  has  been  left  substantially  as  written  ;  but  it 
points  rather  to  a  certain  inevitable  infirmity  in  human  judgment 
than  to  any  real  c-r  inherent  difference  between  the  search  after  truth 
in  civil  and  criminal  cases,  and  it  hardly  seems  consistent  with  much 
that  follows.  Men  will  pronounce  without  hesitation  that  a  person 
owes  another  a  hundred  pounds  on  evidence  on  which  they  certainly 
would  not  hang  him  ;  and  yet  all  the  rules  of  law  that  apply  to  the  one 
case  apply  to  the  other,  and  the  processes  are  the  same.  The 
difference  in  result  is  not  logical — but  human  nature  is  made  up  of  a 
good  deal  besides  logic,  and  "  naturam  expellas  furca,  tamen  usque 
recurret." 

(o)  2  P.  C.  ch.  39  ;  Rex  v.  Thornton^  pp.  244-249,  supra,  is  a 
remarkable  illustration  of  this.  (^)  pp.  300-310,  infra. 


268  RULES    OF    EVIDENCE. 

better  that  five  orullty  persons  should  escape  uti* 
punished  than  that  one  innocent  j)erson  should  die  (^). 
Paley  controverts  the  maxim,  and  urges  that  "  he 
who  falls  by  a  mistaken  sentence  may  be  considered 
as  falling  for  his  country,  whilst  he  suffers  under  the 
operation  of  those  rules,  by  the  general  effect  and 
tendency  of  which  the  welfare  of  the  community  is 
maintained  and  upholden  "  (r).  There  is  no  judicial 
enormity  which  may  not  be  palliated  or  justified 
under  colour  of  this  execrable  doctrine,  which  is 
calculated  to  confound  all  mc^ril  and  legal  distinc- 
tions ;  its  sophistry,  absurdity,  and  injustice  have 
been  unanswerably  exposed  by  one  of  the  ablest  of 
lawyers  and  most  upright  of  men  (.?).  Justice  never 
requires  the  sacrifice  of  a  victim  ;  an  erroneous 
sentence  is  calculated  to  produce  incalculable  and 
irreparable  mischief  to  individuals,  to  destroy  all 
confidence  in  the  justice  and  integrity  of  the 
tribunals,  and  to  introduce  an  alarming  train  of 
social  evils  as  the  inevitable  result.  Every  con- 
sideration of  truth,  justice,  and  prudence  requires, 
therefore,  that  where  the  guilt  of  the  accused  is  not 
incontrovertibly  established,  however  suspicious  his 
conduct  may  have  been,  he  shall  be  freed  from 
legal  accountability.  No  rule  of  procedure  is  more 
firmly  established,  as  one  of  the  great  safeguards  of 
truth  and  innocence,  than  the  rule  in  question  ;  and 
it  is  the  invariable  practice  of  judges  to  advise  juries 
to  acquit  whenever  they  entertain  any  fair  and 
reasonable  doubt.     The  doubt  however  must  be  not 

{q)  2  P.  C.  c.  39. 

(r)  Moral  and  Political  Philosophy,  book  vi.,  ch.  9  (at  the  end). 
{s)  Romilly's  Obs.  on  the  C.  L.  of  England,  72 ;    Best  on  Presumph 
tions,  p.  292. 


RULES    OF    EVIDENCE.  269 

a  trivial  one,  such  as  speculative  ingenuity  may 
raise,  but  a  conscientious  one  which  may  operate 
upon  the  mind  of  a  rational  man  acquainted  with 
the  affairs  of  life  (^).  "If,"  said  Lord  Chief  Baron 
Pollock  to  the  jury,  "  the  conclusion  to  which  you 
are  conducted  be  that  there  is  that  degree  of 
certainty  in  the  case  that  you  would  act  upon  it  in 
your  own  grave  and  important  concerns,  that  is  the 
degree  of  certainty  which  the  law  requires,  and 
which  will  justify  you  in  returning  a  verdict  of 
guilty  "  (it). 

The  rules  of  evidence,  as  founded  on  reason  and 
consecrated  in  the  judgments  of  the  courts,  consti- 
tute the  best  means  for  discoverino-  truth,  and  are 
an  integral  part  of  our  legal  system,  essential  alike 
for  private  and  social  security.  Nevertheless, 
language  of  most  dangerous  tendency  in  regard  to 
them  has  occasionally  fallen  from  learned  judges, 
which  implies  that  they  may  be  modified,  according 
to  the  enormity  of  the  crime,  or  the  weightiness  of 
the  consequences  which  attach  to  conviction.  Lord 
Finch,  afterwards  Lord  Chancellor  Nottingham,  on 
the  trial  of  Lord  Cornwallis,  said,  "The  fouler  the 
crime  is,  the  clearer  and  the  plainer  ought  the  proof 
to  be"  {z).  "  The  more  flagrant  the  crime  is,"  said 
Mr.  Baron  Legge,  "  the  more  clearly  and  satis- 
factorily you  will  expect  that  it  should  be  made  out 

(/)  Per  Parke,  B.  in  Pe^.  v.  Taivell^  see  pp.  313-317,  infra. 

{u)  Reg.  V.  Manttmg  a?id  Wife,  C.  C.  C,  Oct.  1849  ;  and  see  the 
language  of  Lord  Meadowbank  in  Reg.  v.  Humphreys.,  referred  to  and 
quoted  p.  264,  supra  ;  and  of  Shaw,  C.  J.,  in  Prof.  Webster's  Case, 
p.  109,  supra.,  Bemis's  Rep.  470. 

{x)  7  St.  Tr.  149,  and  see  Rex  v.  Crossfield,  26  St.  Tr.  218. 


270  RULES    OF    EVIDENCE. 

to  you  "  (;').  Mr.  Justice  Holroyd  is  represented  to 
have  said,  that  "  the  greater  the  crime,  the  stronger 
is  the  proof  required  for  the  purpose  of  convic- 
tion "  [s). 

Upon  a  trial  for  high  treason,  Lord  Chief  Justice 
Dallas,  after  adverting  to  the  extreme  guilt  of  the 
crime,  as  seeking  the  subversion  of  the  established 
government,  and  aiming  at  the  property,  the  liberty, 
and  the  lives  of  all,  said,  "  Still,  however,  nothing 
will  depend  upon  the  comparative  magnitude  of  the 
offence  ;  for  be  it  great  or  small,  every  man  stand- 
ing in  the  situation  in  which  the  prisoner  is  placed, 
is  entitled  to  have  the  charge  against  him  clearly 
and  satisfactorily  proved  ;  with  only  this  difference 
(and  I  make  the  observation  at  the  outset,  as  being 
in  favour  of  the  prisoner),  that  in  proportion  to  the 
magnitude  of  the  offence,  and  the  consequences 
which  result  from  his  conviction,  ought  the  proof  to 
be  clear  and  satisfactory  "  (^).  In  the  case  of  the 
Glasgow  cotton-spinners  for  conspiracy  and  murder, 
the  learned  Lord  Justice  Clerk  Boyle  said,  that  the 
magnitude  of  the  charge  ought  to  have  no  other 
effect  than  rendering  it  more  necessary  that  the  jury 
should  be  fully  satisfied  that  the  evidence  is  clear 
upon  the  subject  (d).  The  distinction  was  more 
broadly  laid  down  by  the  late  Lord  Justice  Clerk 
Cockburn,    in     Madeleine    Smith's    case  (^).       "In 

(j)  Rex  V.  Blandy,  18  St.  Tr.  1 186. 
{z)  Rex  V.  Hodson,  i  Lewin,  C.  C.  261. 
{a)  Rexv.  Ings^  33  St.  Tr.  1135. 

ip)  Reg.  V.  Hanson  and  others^  Court  of  Justiciary,  1838  ;     Short- 
hand Rep.  366. 

ic)  Pp.  300-310,  infra. 


RULES    OF    EVIDENCE.  27 1 

drawing  an  inference,"  said  the  learned  judge,  '*  you 
must  always  look  to  the  import  and  character  of 
the  inference  which  you  are  asked  to  draw  "  ;  and 
the  same  distinction  pervades  the  whole  of  the 
charge  in  that  celebrated  case. 

These  dicta  are  opposed  to  the  principles  of 
reason,  and  inconsistent  with  all  established  rules 
of  law.  No  legal  doctrine  is  more  firmly  settled 
than  that  there  is  no  difference  between  the  rules  of 
evidence  in  civil  and  criminal  cases  ;  but  if  under 
any  circumstances  they  may  be  relaxed  according  to 
notions  of  supposed  expediency,  they  cease  to  be, 
in  any  correct  and  intelligible  sense,  rules  for  the 
discovery  of  truth,  and  the  most  valued  rights  of 
civilized  men  become  the  sport  of  chance.  The 
logical  consequences  of  any  such  power  of  relaxation 
would  be,  that  the  rules  of  evidence  are  radically 
different  in  civil  and  criminal  cases,  and  different 
even  in  criminal  cases,  as  they  are  applied  to 
particular  classes  of  crime,  according  to  some  arbitrary 
and  imaginary  measure  for  estimating  their  relative 
enormity  or  penal  consequence.  Is  the  dictum,  it 
may  be  asked,  to  be  restricted  to  cases  where  the 
consequence  of  conviction  may  be  loss  of  life  }  Is 
it  to  be  repudiated  when  it  may  be  followed  by  the 
inferior  penalties  of  imprisonment  or  penal  servitude  } 
Is  it  to  be  applied  or  rejected  in  application  in  the 
numerous  cases,  civil  as  well  as  criminal,  where 
physical  and  social  consequences  may  follow,  which, 
though  of  a  different  kind,  may  be  scarcely  less  fatal 
to  the  individual  than  loss  of  liberty,  or  even  of 
life  itself  .f*     And  if  the  maxims  of  evidence  may  be 


272  RULES    OF    EVIDENCE. 

made  more  stringent  in  one  direction,  there  is  no 
reason  why  they  may  not  be  relaxed  in  another, 
according  to  the  greater  difficulties  incidental  to 
the  proof  of  the  more  atrocious  and  dangerous 
forms  of  crime,  as  some  writers  on  the  civil 
law  have  actually  maintained.  A  distinguished 
historical  writer,  with  the  strictest  philosophical 
truth,  and  with  great  felicity  of  illustration, 
has  thus  denounced  the  doctrine  under  review  : — 
"The  rules  of  evidence  no  more  depend  on  the 
magnitude  of  the  interests  at  stake  than  the  rules 
of  arithmetic.  We  might  as  well  say  that  we  have 
a  greater  chance  of  throwing  a  size  when  we  are 
playing  for  a  penny,  than  when  we  are  playing  for 
a  thousand  pounds,  as  that  a  form  of  trial  which 
is  sufficient  for  the  purposes  of  justice,  in  a  matter 
affecting  liberty  and  property,  is  insufficient  in  a 
matter  affecting  life.  Nay,  if  a  mode  of  proceeding 
be  too  lax  for  capital  cases,  it  is,  d  priori,  too  lax 
for  all  others  ;  for  in  capital  cases  the  principles  of 
human  nature  will  always  afford  considerable  security. 
No  judge  is  so  cruel  as  he  who  indemnifies  himself 
for  scrupulosity  in  cases  of  blood,  by  license  in 
affairs  of  smaller  importance.  The  difference  in 
tale  on  the  one  side  far  more  than  makes  up  for 
the  difference  in  weight  on  the  other  "  {d). 

[d)  Macaulay's  Essays:  "  Hallam's  Constitutional  History."     Ed. 
Longmans',  1852,  vol.  i.  p.  143.     See,  however,  p   267,  siipra^  note  («)» 


AMERICAN   NOTES. 

[Note  to  Chapter  VI.] 

Clear  Proof  of  Fads  Required. 

"The  several  circumstances  upon  which  conclusion  depends 
must  be  fully  established  by  proof.  They  are  facts  from  which 
the  main  fact  is  to  be  inferred  ;  and  they  are  to  be  proved  by 
competent  evidence,  and  by  the  same  weight  and  force  of  evi- 
dence, as  if  each  one  were  itself  the  main  foct  in  issue.  Under 
this  rule,  every  circumstance  relied  upon  as  material  is  to  be 
brought  to  the  test  of  strict  proof;  and  great  care  is  to  be  taken 
in  guarding  against  feigned  and  pretended  circumstances,  which 
may  be  designedly  contrived  and  arranged,  so  as  to  create  or  di- 
vert suspicion  and  prevent  the  discovery  of  the  truth."  Com.  v. 
Webster,  5  Cush.  295-317, 

Subsidiary  Facts  —  Links  in  Chain. 

Where  the  facts  from  which  the  guilt  of  the  defendant  is  to  be 
inferred  actually  depend  one  upon  the  other  as  do  the  links  in  a 
chain ;  where  the  failure  of  any  one  destroys  the  value  of  r.il 
the  rest,  —  each  one  must  be  proved  beyond  a  reasonable  duubt, 
but  not  otherwise.     State  v.  McKee  (Utah),  53  Pac.  77?. 

It  is  the  guilt  of  the  accused  that  must  be  established  beyond 
a  reasonable  doubt,  and  not  every  subsidiary  or  collateral  fact 
involved.  Williams  7^  People,  166  111.  132  ;  Hankz'.  State  (Ind.), 
46  N.  E.  127  ;  Bradshaw  v.  State,  17  Neb.  147  ;  Houser  v.  State, 
58  Ga.  78;  State  v.  Hayden,  45  Iowa,  11  ;  Lackey  v.  State,  67 
Ark.  416, 

Each  fact  essential  to  the  inference  of  guilt  must  be  proved 
beyond  any  reasonable  doubt,  but  not  each  fact  that  is  not  thus 
essential.  It  is  enough  if  the  facts  as  a  whole  exclude  any  rea- 
sonable conclusion,  except  that  of  the  defendant's  guilt.  They 
must,  as  a  whole,  convince  beyond  any  reasonable  doubt.  State 
V.  Rome,  64  Conn.  329  ;  Gavin  v.  State  (Fla.),  29  So.  405. 


2/2  ^  AMERICAN   NOTES. 

*'  Circumstantial  evidence  may  be  of  two  kinds,  consisting 
either  of  a  ninnber  of  consecutive  links,  each  depending  upon 
the  other,  or  a  number  of  independent  circumstances  all  pointing 
in  the  same  direction.  In  the  former  case  it  is  said  that  each 
link  must  be  complete  in  itself,  and  that  the  resulting  chain  cannot 
be  stronger  than  its  weakest  link.  In  the  latter  case  the  indi- 
vidual circumstances  are  compared  to  the  strands  in  a  rope, 
where  no  one  of  them  may  be  sufficient  in  itself,  but  all  to- 
gether may  be  strong  enough  to  prove  the  guilt  of  the  defendant 
beyond  a  reasonable  doubt."     State  v.  Austin  (N.  C),  40  S.  E. 

415. 

Every  fact  that  is  essential  to  warrant  an  inference  of  guilt 
must  be  proved  beyond  a  reasonable  doubt,  but  this  is  not  true 
of  every  fact  that  is  offered.  A  fact  may  be  proved  merely  be- 
cause it  tends  to  establish  the  guilt  of  the  accused,  and  that  guilt 
may  be  sufficiently  proved  even  though  this  fact  never  existed. 
Hence,  if  this  fact  need  not  be  shown  at  all,  it  certainly  need  not 
be  proved  beyond  a  reasonable  doubt.  Bradshaw  v^  State,  1 7 
Neb.  147  (quoted  in  note  to  Chapter  I.)  ;  People  v.  Willett,  105 
Mich,  no;  People  v.  Hare,  57  Mich.  505. 

It  is  not  necessary  that  each  circumstance  in  the  chain  be 
proved  beyond  a  reasonable  doubt.  Breck  v.  State,  4  Ohio  Circ. 
Ct.  160,  21  Weekly  Law  Bulletin,  204. 

Bu7-de?i  on    One  Asserting. 

"  Whoever  desires  any  Court  to  give  judgment  as  to  any  legal 
right  or  liability  dependent  on  the  existence  or  non-existence  of 
facts  which  he  asserts  or  denies  to  exist,  must  prove  that  those 
facts  do  or  do  not  exist."     Stephen's  Dig.  Evid.,  Art.  93. 

Best  Evide7ice  Rule. 

Greenleaf  states  the  rule  as  follows :  "  A  fourth  rule  which 
governs  in  the  production  of  evidence  is  that  which  requires  the 
best  evidence  of  which  the  case  in  its  nature  is  susceptible.  This 
rule  does  not  demand  the  greatest  amount  of  evidence  which  can 
possibly  be  given  of  any  fact ;  but  its  design  is  to  prevent  the  in- 
troduction of  any  which  from  the  nature  of  the  case  supposes  that 
better  evidence  is  in  the  possession  of  the  party.  It  is  adopted 
for  the  prevention  of  fraud  ;  for  when  it  is  apparent  that  better 


AMERICAN   NOTES.  2/2  C 

evidence  is  withheld,  it  is  fair  to  presume  that  the  party  Iiad 
some  sinister  motive  for  not  producing  it,  and  that,  if  offered,  his 
design  would  be  frustrated.  The  rule  thus  becomes  essential  to 
the  pure  administration  of  justice.  In  requiring  the  production 
of  the  best  evidence  applicable  to  each  particular  fact,  it  is  meant 
that  no  evidence  shall  be  received  which  is  merely  substitutionary 
in  its  nature,  so  long  as  the  original  evidence  can  be  had.  The 
rule  excludes  only  that  evidence  which  itself  indicates  the  exist- 
ence of  more  original  sources  of  information.  But  where  there  is 
no  substitution  of  evidence,  but  only  a  selection  of  weaker  instead 
of  stronger  proofs,  or  an  omission  to  supply  all  the  proofs  capable 
of  being  produced,  the  rule  is  not  infringed."  Greenleaf  on  Evid., 
i6th  ed.,  §  82. 

But  the  application  of  the  rule  in  this  place  and  of  the  phrase 
"  best  evidence  "  is  criticised  by  later  authorities.  The  editor 
of  the  1 6th  edition  remarks  : 

"That  phrase,  as  already  explained,  is  of  no  service  as  a  con- 
crete rule  for  dealing  with  a  given  piece  of  evidence  ;  it  is  used 
to  describe  loosely  the  general  policy  underlying  certain  concrete 
rules,  which,  however,  are  entirely  independent  of  each  other,  in 
history  and  in  theory,  and  must  be  discriminated."  Greenleaf 
on  Evid.,  1 6th  ed.,  §  97  a. 

The  editor,  Professor  Wigmore,  then  goes  on  to  say  that  the 
underlying  concrete  rules  above  referred  to  are  the  Parol  Evi- 
dence rule  governing  the  proof  of  the  contents  of  a  writing,  the 
Hearsay  rule  excluding  hearsay  because  evidence  on  oath  and 
under  cross-examination  is  better,  the  Attesting  Witness  rule, 
supposed  rules  requiring  eye-witnesses  before  others,  and  rules 
requiring  the  official  reports  and  records. 

Also  in  Thayer's  Prelim.  Treatise  on  Evidence  it  is  said  : 

[The  rule]  "  is  accompanied  now  with  so  many  explanations 
and  qualifications  as  to  indicate  the  need  of  some  simpler  and  truer 
statement,  which  should  exclude  any  mention  of  this  as  a  work- 
ing rule  of  our  system.  Indeed,  it  would  probably  have  dropped 
naturally  out  of  use  long  ago  if  it  had  not  come  to  be  a  con- 
venient, short  description  of  the  rule  as  to  proving  the  contents 
of  a  writing.  Regarded  as  a  general  rule,  the  trouble  with  it  is 
that  it  is  not  true  to  the  facts,  and  does  not  hold  out  in  its  appli- 
cation ;  and  in  so  far  as  it  does  apply,  it  is  unnecessary  and  un- 
instructive.     It  is  roughly  descriptive  of  two  or  three  rules  which 


2']2  d  AMERICAN   NOTES. 

have  iheir  own  reasons  and  their  own  name  and  place,  and  are 
well  enough  known  without  it." 

"One  of  the  general  rules  of  evidence  of  universal  application 
is  that  the  best  evidence  of  the  disputed  facts  must  be  produced 
of  which  the  nature  of  the  case  will  admit.  This  rule,  speaking 
technically,  applies  only  to  the  distinction  between  primary  and 
secondary  evidence  ;  but  the  reason  assigned  for  the  a])plication 
of  the  rule  in  a  technical  sense  is  equally  applicable,  and  is  fre- 
quently applied,  to  the  distinction  between  the  higher  and  inferior 
degrees  of  proof,  speaking  in  a  more  general  and  enlarged  sense 
of  the  terms."     Clifton  v.  U.  S.,  4  How.  247. 

Testimony  as  to  the  ownership  of  a  stolen  animal,  which  in 
itself  shows  that  there  is  better  evidence  not  produced,  is  objec- 
tionable.    Butler  V.  State,  3  Tex.  App.  48. 

A  witness  may  testify  from  memory  the  amount  of  goods  stolen, 
even  though  the  way-bills  would  show  the  exact  amount  stored  in 
the  depot.     Davis  v.  State  (Ga.),  32  S.  E.  158. 

Proof  of  Former  Testimony. 

Oral  evidence  of  what  a  witness  swore  to  at  an  inquest  is  the 
best  evidence  obtainable  when  what  the  witness  said  was  not  re- 
duced to  writing.  Nelson  v.  State,  32  Ark.  192  ;  Lyons  v.  People, 
137  111.  602  ;  Brown  v.  State,  71  Ind.  470. 

But  when  a  record  of  the  evidence  was  made  in  regular  manner 
at  the  inquest,  it  must  be  produced.  Robinson  v.  State,  87  Ind. 
292  ;  State  v.  Zellers,  7  N.  J.  L.  220. 

Weak    Witnesses. 

The  rule  requiring  the  best  evidence  refers  to  quality  and  not 
to  quantity,  but  does  not  exclude  a  weak  witness  merely  because 
a  strong  one  might  have  been  produced.  Richardson  v.  Milburn, 
17  Md.  67. 

Any  one  who  saw  the  fact  may  testify,  though  one  not  called 
might  be  a  better  witness  than  the  one  testifying.  Richardson  v. 
Milburn,  17  Md.  67;   Canfield  v.  Johnson,  144  Pa.  61. 

Direct  Evidence  Preferred  to    Circumsttntial. 
Where  direct  evidence  can  be  had  there  should  be  no  con- 
viction on  circumstantial  evidence  alone.     Chi.olm  v.  State,  45 
Ala.  66  ;  Terr.     .  Hanna,  5  Mont.  248. 


AMERICAN   NOTES.  272  e 

At  least  the  absence  of  such  direct  evidence  should  be  ac- 
counted for  after  reasonable  effort  to  obtain  it.  Porter  v.  State, 
I  Tex.  App.  394. 

And  it  is  a  sufficient  explanation  that  the  witnesses  are  without 
the  State.     Scott  v.  State,  19  Tex.  App.  325. 

Where  a  certain  person  witnessed  the  perpetration  of  a  crime, 
a  conviction  will  not  be  sustained  where  such  person  was  not 
called  as  a  witness,  and  the  failure  to  call  him  is  not  satisfactorily 
accounted  for.     Terr.  v.  Hanna,  5  Mont.  2 48. 

Presumption  from  Failure  to  Produce. 

The  rule  that  where  a  party  does  not  produce  evidence  which 
is  in  his  power  to  produce,  the  jury  is  authorized  to  conclude  that 
it  would  be  damaging  to  such  party,  is  not  the  same  thing  as  the 
rule  requiring  the  best  evidence.  For  a  discussion  of  this  rule, 
see  Chapter  III.  and  note. 

Proving  a  fact  by  inferior  evidence  when  better  evidence  is  in 
the  possession  of  the  party  warrants  an  inference  that  the  latter 
would  not  be  in  favor  of  his  contention.  Insur.  Co.  v.  Evanns, 
9  Md.  I. 

Facts  Proved  not  Consistent  with  Innocence  in   General. 

"  Where  a  criminal  charge  is  to  be  proved  by  circumstantial 
evidence,  the  proof  ought  to  be  not  only  consistent  with  the 
prisoner's  guilt,  but  inconsistent  with  any  other  rational  con- 
clusion."    Greenleaf  on  Evid.,  §   34. 

Chief  Justice  Shaw,  in  Com.  v.  Webster,  5  Cush.  295,  at  page 
313,  says:  "The  common  law  appeals  to  the  plain  dictates  of 
common  experience  and  sound  judgment ;  and  the  inference  to 
be  drawn  from  the  facts  must  be  a  reasonable  and  natural  one, 
and,  to  a  moral  certainty,  a  certain  one.  It  is  not  sufficient  that 
it  is  probable  only ;   it  must  be  reasonably  and  morally  certain." 

In  State  v.  Hill,  65  Mo.  84,  the  following  instruction  was  ap- 
proved :  "  The  jury  are  instructed  that  they  may  from  circum- 
stantial evidence  alone  find  the  defendant  guilty,  when  the  facts 
established  are  inconsistent  with  any  other  theory  than  that  of  his 
guilt,  but  in  order  to  find  the  defendant  guilty  from  circumstantial 
evidence  the  facts  proven  must  be  wholly  inconsistent  with  the 
innocence  of  the  accused  and  incapable  of  explanation  upon  any 


272/  AMERICAN  NOTES, 

other  reasonable  hypothesis  than  that  of  his  guilt ;  and  before  the 
jury  can  find  the  defendant  guilty  they  must  believe  and  find  from 
the  evidence  that  tlie  circumstances  i)roven  in  the  case  are  not 
only  inconsistent  \vi:h  the  innocence  of  the  accused  and  recon- 
cilable only  upon  tiie  ground  of  his  guilt,  but  they  must  further 
find  that  no  satisfactory  explanation  of  said  circumstances  has 
been  rendered  by  the  evidence  of   the  defendant." 

In  State  r.  Rollins,  113  N.  C.  722,  it  was  held  no  error  to  re- 
fuse the  following  instruction  :  "  If  there  is  a  reasonable  hypothesis, 
supported  by  the  evidence,  which  is  consistent  with  the  prisoner's 
innocence,  then  it  is  the  duty  of  the  jury  to  acquit."  This  would 
seem  to  be  contrary  to  the  rule  of  the  text. 

AH  Reasonable  Hypotheses  Other  than   Guilt  Must  be 
Excluded. 

All  other  reasonable  hypotheses  than  the  guilt  of  the  accused 
must  be  excluded  by  the  evidence  to  a  moral  certainty.  Morgan 
V.  State  (Neb.),  71  N.  W.  788;  Bryant  v.  State  (Ala.),  23  So. 
40;  State  V.  Matthews,  66  N.  C.  106.  And  the  proof  need  not 
be  absolutely  incompatible  with  other  hypotheses.  Mitchell  v. 
State  (Ala.),  22  So.  71  ;  James  v.  State,  45  Miss.  572. 

Evidence  that  does  not  exclude  every  other  reasonable  infer- 
ence except  the  guilt  of  the  accused  is  not  sufficient  to  sustain  a 
conviction  (People  v.  Nelson,  85  Cal.  421  ;  State  v.  Johnson, 
19  Iowa,  230;  Kennedy  v.  State,  31  Fla.  428;  State  v.  Hunter, 
50  Kan.  302  ;  People  v.  Foley,  64  Mich.  148)  ;  but  it  need  not 
exclude  every  other  possible  hypothesis.  People  v.  Ward,  105 
Cal.  335  ;  People  v.  Murray,  41  Cal.  66  ;  King  v.  State  (Ala.), 
25  So.  178. 

A  conviction  cannot  be  sustained  where  all  the  circumstances 
implicating  the  defendant  in  a  homicide  are  entirely  consistent 
with  his  innocence  and  his  abandonment  of  a  previous  expressed 
intention  to  kill.     Fuller  v.  State,  112  Ga.  539. 

In  Gilmore  v.  State  (Tex.),  13  S.  W.  646,  where  the  defend- 
ant was  charged  with  horse-stealing,  a  conviction  was  not  sustained 
because  none  of  the  circumstances  proved  were  inconsistent  with 
the  defendant's  innocence. 

The  Court  will  instruct  that  if  the  circumstances  are  reconcil- 
able with  innocence  there  can  be  no  conviction.     Moore  v.  State, 


AMERICAN   NOTES.  2/2  g 

2  Ohio  St.  500.  A  mere  strong  probability  is  not  enough.  If 
the  facts  are  fairly  to  be  reconciled  on  the  theory  of  innocence 
there  is  a  reasonable  doubt.     Clark  v.  State,  12  Ohio,  483,  495. 

Where  defendant  charged  with  arson  had  advised  one  having 
hay  in  the  barn  to  take  it  out,  because  something  was  liable  to 
happen,  and  several  months  before  had  advised  one  living  close 
by  to  insure  her  furniture,  it  was  held  that  these  facts  were  as 
consistent  with  innocence  as  with  guilt.  People  v.  Doneburg,  64 
N.  Y.  Supp.  438. 

Incompatibility  of  Some  One  Circumstance  with   Guilt. 

Where  any  fact  established  is  wholly  incompatible  with  the 
inference  of  the  defendant's  guilt,  he  should  be  acquitted.  U.  S. 
V.  Reder,  69  Fed.  Rep.  965  ;  but  see  State  v.  Johnson,  37  Minn. 
493;  and  People  v.  Willett,  105  Mich.  no. 

"The  next  rule  to  which  I  ask  attention  is,  that  all  the  facts 
proved  must  be  consistent  with  each  other,  and  with  the  main 
fact  sought  to  be  proved.  When  a  fact  has  occurred,  with  a 
series  of  circumstances  preceding,  accompanying,  and  following 
it,  we  know  that  these  must  all  have  been  once  consistent  with 
each  other ;  otherwise  the  fact  would  not  have  been  possible. 
Therefore,  if  any  one  fact  necessary  to  the  conclusion  is  wholly 
inconsistent  with  the  hypothesis  of  the  guilt  of  the  accused,  it 
breaks  the  chain  of  circumstantial  evidence  upon  which  the  infer- 
ence depends  ;  and,  however  plausible  or  apparently  conclusive 
the  other  circumstances  may  be,  the  charge  must  fail."  Com.  v. 
Webster,  5  Cush.  295,  318. 

Absolute  Impossibility  of  Innocence. 

It  need  not  be  proved  to  be  absolutely  impossible  that  any 
other  person  than  the  defendant  could  have  committed  the  crime 
charged.     Com.  v.  Leach,  156  Mass.  99. 

The  evidence  need  not  establish  the  guilt  of  the  accused  to 
the  "exclusion  of  every  possibility  of  innocence."  Burks  v.  State 
(Ala.),  23  So.  530. 

It  is  not  error  to  refuse  an  instruction  that  the  facts  and  cir- 
cumstances proved  must  be  "  absolutely  incompatible  upon  any 
reasonable  hypothesis  with  the  innocence  of  the  accused,  and 
incapable  of  explanation  upon  any  reasonable  hypothesis  other 


272  h  AMERICAN   NOTES. 

than  that  of  the  guilt  of  tlie  accused."     Horn  v.  State  (Wyo.),  73 
Pac.  705. 

Burden  of  Proof  in   Criminal  Cases  —  General  Authorities. 

Miles  V.  U.  S.,  103  U.  S.  304;  Nevling  v.  Com.,  98  Pa.  St. 
322;  People  V.  Paulsell,  115  Cal.  6;  Morgan  v.  State,  48  Ohio 
St.  371  ;  Wade  v.  State,  71  Ind.  535  ;  Jameson  v.  People,  145  111. 
357;  Porterfield  v.  Com.,  91  Va.  801;  People  v.  Ezzo,  104 
Mich.  341  ;  Com.  v.  Goodwin,  14  Gray  (Mass.),  55  ;  Com.  v. 
Kimball,  24  Pick.  (Mass.)  366  ;  Com.  v.  Hardiman,  9  Gray 
(Mass.),  136;  Com.  v.  McKie,  i  Gray  (Mass.),  61  ;  State  v. 
Schweitzer,  57  Conn.  539  ;   Hoyt  v.  Danbury,  69  Conn.  348. 

The  presumption  that  life  continues  relieves  the  State  of  show- 
ing by  positive  evidence  that  life  continued  up  to  the  moment  of 
the  fatal  blow.     Com.  v.  Harman,  6  Pitts.  Leg.  J.  120. 

The  burden  of  proving  that  a  confession  is  voluntary  is  on 
the  State.  State  v.  Young,  67  N,  J.  L.  223  ;  Roesel  v.  State,  62 
N.  J.  L.  216  ;   Nicholson  v.  State,  38  Md.  140. 

Guilt  to  be  Proved  beyond  a  Reasonable  Doubt. 

"  If  the  commission  of  a  crime  is  directly  in  issue  in  any  pro- 
ceeding, criminal  or  civil,  it  must  be  proved  beyond  reasonable 
doubt.  The  burden  of  proving  that  any  person  has  been  guilty 
of  a  crime  or  wrongful  act  is  on  the  person  who  asserts  it,  whether 
the  commission  of  such  act  is  or  is  not  directly  in  issue  in  the 
action."     Stephen's  Dig.  Evid.,  Art.  94. 

The  Court,  where  no  requests  were  made  by  the  prisoner, 
charged  that  it  was  incumbent  upon  the  State  to  satisfy  the  jury 
beyond  a  reasonable  doubt  of  the  guilt  of  the  accused,  but 
omitted  to  say  that  the  accused  was  presumed  to  be  innocent 
until  proven  guilty,  and  omitted  also  to  define  "  reasonable  doubt." 
Held^  that  the  defendant  had  no  just  ground  for  complaint. 
State  V.  Smith,  65   Conn.  283. 

Proof  beyond  a  Reasonable  Doicbt  Defined. 

State  V.  Williamson,  22  Utah,  248;  State  v.  Davis  (Del.),  50 
Atl.  99. 

Where  the  Court  charged  that  a  reasonable  doubt  was  one  that 
you  can  give  a  reason  for,  not  captious  or  whimsical  doubt,  there 


AMERICAN   NOTES.  2/2  z 

was  held  to  be  error.  Morgan  v.  State,  48  Ohio  St.  371.  Proof 
beyond  a  reasonable  doubt  is  stronger  than  clear  proof.  Farrer 
v.  State,  2  Ohio  St.  54,  77. 

"  Vou  have  been  told  that  to  doubt  of  the  prisoner's  guilt  is  to 
acquit  her.  But  a  doubt,  to  work  an  acquittal,  must  be  serious 
and  substantial  —  not  the  mere  possibility  of  a  doubt.  If  the 
evidence  convince  you  of  guilt  beyond  a  reasonable  doubt,  you 
are  bound  to  convict.  You  are  the  judges  of  its  effect ;  and  if 
you  can  reconcile  it  to  any  reasonable  hypothesis  of  innocence, 
you  may  acquit ;  if  not,  you  are  bound  to  say  so."  Charge  of 
Gibson,  C.  J.,  in  Cora.  v.  Harman,  4  Pa.  269,  274. 

"  Another  rule  is,  that  the  circumstances  taken  together  should 
be  of  a  conclusive  nature  and  tendency,  leading  on  the  whole  to 
a  satisfactory  conclusion,  and  producing  in  effect  a  reasonable  and 
moral  certainty,  that  the  accused,  and  no  one  else,  committed  the 
offence  charged.  It  is  not  sufficient  that  they  create  a  proba- 
bility, though  a  strong  one ;  and  if,  therefore,  assuming  all  the 
facts  to  be  true  which  the  evidence  tends  to  establish,  they  may 
yet  be  accounted  for  upon  any  hypothesis  which  does  not  include 
the  guilt  of  tlie  accused,  the  proof  fails.  It  is  essential,  therefore, 
that  the  circumstances  taken  as  a  whole,  and  giving  them  their 
reasonable  and  just  weight  and  no  more,  should  to  a  moral  cer- 
tainty exclude  every  other  hypothesis.  The  evidence  must  estab- 
lish the  corpus  delicti,  as  it  is  termed,  or  the  offence  committed  as 
charged  ;  and  in  case  of  homicide,  must  not  only  prove  a  death 
by  violence,  but  must,  to  a  reasonable  extent,  exclude  the  hypothe- 
sis of  suicide,  and  a  death  by  the  act  of  any  other  person.  This 
is  to  be  proved  beyond  reasonable  doubt. 

"Then  what  is  reasonable  doubt?  It  is  a  term  often  used, 
probably  pretty  well  understood,  but  not  easily  defined.  It  is  not 
mere  possible  doubt ;  because  everything  relating  to  human  affairs 
and  depending  on  moral  evidence  is  open  to  some  possible  or 
imaginary  doubt.  It  is  that  state  of  the  case  which,  after  the 
entire  comparison  and  consideration  of  all  the  evidence,  leaves 
the  minds  of  jurors  in  that  condition  that  they  cannot  say  they 
feel  an  abiding  conviction,  to  a  moral  certainty,  of  the  truth  of 
the  charge.  The  burden  of  proof  is  upon  the  prosecutor.  All 
the  presumptions  of  law  independent  of  evidence  are  in  favor  of 
innocence  ;  and  every  person  is  presumed  to  be  innocent  until  he 
is  proved  guilty.     If  upon  such  proof  there  is  reasonable  doubt 


2727  AMERICAN   NOTES. 

remaining,  the  accused  is  entitled  to  the  benefit  of  it  by  an 
acquittal.  For  it  is  not  sufficient  to  establish  a  probability,  though 
a  strong  one  arising  from  the  doctrine  of  chances,  that  the  fact 
charged  is  more  likely  to  be  true  than  the  contrary  ;  but  the  evi- 
dence must  establish  the  truth  of  the  fact  to  a  reasonable  and 
moral  certainty ;  a  certainty  that  convinces  and  directs  the  under- 
standing, and  satisfies  the  reason  and  judgment,  of  those  who  are 
bound  to  act  conscientiously  upon  it.  This  we  take  to  be  proof 
beyond  reasonable  doubt ;  because  the  law,  wliich  mostly  depends 
upon  considerations  of  a  moral  nature,  should  go  further  than 
this,  and  require  absolute  certainty,  it  would  exclude  circumstan- 
tial evidence  altogether."     Com.  v.  Webster,  5  Cush.  295,  319. 

The  corpus  delicti  must  be  established  beyond  a  reasonable 
doubt,  but  not  by  "  overwhelming  proof."  Zell  v.  Com.,  94  Pa. 
258. 

Moral  Certainty  Required. 

Absolute  certainty  is  not  essential  to  conviction,  but  moral 
certainty  is.     Otmer  v.  People,  76  111.  149. 

Doubt  on  the  Part  of  One  Juror. 

The  fact  that  one  of  the  jurors  has  a  reasonable  doubt  does  not 
invalidate  a  verdict  in  case  he  yields  to  the  other  eleven.  Pickens 
V.  State  (Ala.),  22  So.  551;  Davis  v.  State  (Neb.),  70  N.  W. 
984. 

The  proper  charge  is  that  the  jury,  and  not  each  juror,  should 
be  convinced  beyond  reasonable  doubt.  Davis  v.  State,  63  Ohio 
St.  173,  10  Circ.  Dec.  73S. 

Atfiount  of  Evidence  Required  to  Exclude  Reasonable  Doubt. 

The  defendant  cannot  be  convicted  of  larceny  upon  evidence 
that  merely  raises  a  suspicion  of  his  guilt.  Munroe  v.  State,  1 1 1 
Ga.  831. 

Evidence  that  the  defendant  was  seen  driving  a  cow,  like  the 
one  he  is  alleged  to  have  stolen,  toward  his  slaughter  pen,  and 
that  her  hide  and  horns  were  found  there  later,  is  sufficient  to 
sustain  a  conviction  for  larceny.     Turner  v.  State,  1 1 1  Ga.  217. 

In  Tilley  v.  Com.,  90  Va.  99,  the  Court  held  that  the  following 
evidence  did  not  establish  the  defendant's  guilt  beyond  a  reason- 


AMERICAN   NOTES.  2/2  k 

able  doubt.  The  defendant  and  the  deceased,  a  young  woman, 
were  seen  to  enter  certain  woods  together,  later  a  shot  was  heard, 
and  some  time  after  the  defendant  was  seen  alone  on  a  road  not 
far  away.  The  body  of  the  young  woman  was  found  with  a  bullet- 
hole  in  her  head,  and  the  defendant  had  had  a  pistol  which  might 
have  inflicted  the  wound.  A  purse  with  $30,  which  the  deceased 
had  had,  was  gone.  The  defendant  was  in  danger  of  lynching, 
and  fled,  concealing  himself  in  another  State  for  three  years. 
When  arrested  he  showed  no  anxiety  and  refused  to  escape  when 
opportunity  offered.  The  shoes  worn  by  him  at  the  time  could 
not  have  made  certain  tracks  about  the  scene  of  the  crime.  He 
had  no  need  whatever  of  money. 

If  there  is  doubt  as  to  which  of  two  persons  struck  the  blow, 
and  both  cannot  be  guilty,  the  jury  should  acquit.  State  v.  Goode 
(N.  0,43  S.E.  502. 

It  is  not  necessary  to  compare  circumstantial  evidence  in  weight 
as  equal  to  that  of  one  credible  witness  or  more  ;  it  is  sufficient 
that  it  demonstrates  the  guilt  of  the  accused  beyond  a  reasonable 
doubt.  Faulk  v.  State,  52  Ala.  415  ;  State  v.  Coleman,  22  La. 
Ann.  455. 

Particular  Facts  to  be  Proved. 

Where  defendant  is  charged  with  causing  the  death  of  deceased 
by  procuring  an  abortion,  it  must  be  proved  beyond  a  reasonable 
doubt  that  the  deceased  was  pregnant.  It  need  not  be  absolutely 
certain.     State  v.  Alcorn  (Idaho),  64  Pac.  1014. 

The  accused  must  be  identified  as  the  criminal  beyond  a  rea- 
sonable doubt.     Patton  v.  State,  117  Ga.  230. 

The  rule  requiring  proof  beyond  a  reasonable  doubt  applies  also 
to  the  proof  of  the  degree  of  a  homicide.  Terr.  v.  Manton,  7  Mont. 
162  ;  State  v.  Agnew,  10  N.  J.  L.  165  ;  Blake  v.  State,  3  Tex. 
App.  581  ;  Tate  v.  State,  35  Tex.  Cr.  Rep.  231. 

Malice  and  deliberation  must  be  proved  beyond  a  reasonable 
doubt  to  sustain  a  conviction  for  murder  in  the  first  degree.  State 
V.  Greenleaf,  71  N.  H.  606. 

Where  the  stomach  of  one  deceased  has  been  examined  by  a 
chemist  to  detect  poison  as  the  cause  of  death,  it  must  be  shown 
beyond  a  reasonable  doubt  that  the  stomach  examined  was  that  of 
the  deceased  in  question,  and  that  no  foreign  substance  was  intro- 
duced into  it  between  the  time  of  death  and  the  examination.    But 


2/2  /  AMERICAN   NOTES 

it  need  not  have  been  kept  under  lock  and  key  or  have  been  kept 
sealed  up.     Slate  v.  Cook,  17  Kan.  392. 

In  prosecutions  for  seduction  the  good  repute  of  the  prosecu- 
trix for  chastity  must  be  established  beyond  a  reasonable  doubt. 
State  V.  Brown,  64  N.  J.  L.  414;  Zabriskie  v.  State,  43  N.  J.  L. 
646. 

Where  defendant  in  possession  of  money  belonging  to  anotlier 
alleged  that  he  found  it  and  intended  to  return  it,  the  prosecution 
must  disprove  such  explanation  beyond  a  reasonable  doubt.  White 
V.  State,  28  Tex.  App.  71. 

The  burden  of  proving,  in  murder,  that  the  deceased  did  not 
commit  suicide  is  on  the  prosecution.  Persons  v.  State,  90  Tenn. 
291. 

In  Larceny. 

The  identity  of  the  defendant  charged  with  larceny  must  be 
proved,  not  by  a  preponderance  of  the  evidence,  but  beyond  a 
reasonable  doubt.     State  v.  McCi'acken,  66  Iowa,  569. 

The  property  alleged  to  have  been  stolen  must  be  identified  as 
belonging  to  some  one  other  than  the  accused  beyond  a  reason- 
able doubt.     State  v.  Hill,  96  Mo.  357. 

To  justify  a  conviction  for  grand  larceny  the  value  of  the  goods 
taken  must  be  proved  beyond  a  reasonable  doubt.  State  v.  Wood, 
46  Iowa,  116. 

Prima  Facie  Case  —  Burden  oti  Defe7idant. 

Where  the  defendant  inflicted  a  fatal  wound  with  a  deadly 
weapon  previously  in  his  possession  with  practically  no  provo- 
cation, d.  prima  facie  case  is  established,  and  the  burden  of  pro- 
ducing evidence  of  mitigating  circumstances  is  on  the  defendant. 
Horton  v.  Com.,  99  Va.  848. 

Guilt  must  be  proved  beyond  a  reasonable  doubt,  and  the  bur- 
den of  such  proof  is  in  the  State  throughout  the  trial ;  but  when 
the  homicide  has  been  shown  with  no  justifying  or  mitigating  cir- 
cumstances, the  defendant  has  at  least  the  burden  of  producing 
sufficient  evidence  of  such  circumstances  to  raise  a  reasonable 
doubt.  People  v.  Callaghan,  4  Utah,  49  ;  People  v.  Arnold,  15 
Cal.  476. 

Where  the  body  is  found  and  identified,  if  the  defendant  claims 
that  the  man  alleged  to  have  been  murdered  is  still  alive,  it  de- 


AMERICAN   NOTES.  272  1H 

volves  upon  him  to  show  it  by  satisfactory  evidence.  Com.  v. 
Webster,  5  Cush.  295,  52  Am.  Dec.  711;  State  z;.  Vincent,  24 
Iowa,  570,  95  Am.  Dec.  753. 

Where  the  kiUing  has  been  proved  beyond  a  reasonable  doubt 
and  the  evidence  of  the  State  indicates  no  circumstances  in  miti- 
gation, the  defendant  has  the  burden  of  producing  sufficient  evi- 
dence of  such  circumstances  to  raise  a  reasonable  doubt  as  to  his 
guilt.     People  v.  Matthai,  135  Cal.  442. 

Exculpatory  Facts. 

The  defendant  is  not  required  to  prove  exculpatory  facts  beyond 
a  reasonable  doubt  (Dyson  ?'.  State,  13  Tex.  App.  402)  ;  nor  even 
by  a  preponderance  of  the  evidence.  Tweedy  v.  State,  5  Iowa, 
433  ;   Howell  v.  State  (Neb.),  85  N.  W.  2S9. 

The  defendant,  charged  with  larceny  of  goods,  recently  stolen 
and  found  in  his  possession,  need  not  rebut  the  presumption  aris- 
ing therefrom  by  a  preponderance  of  the  evidence.  He  need  only 
raise  a  reasonable  doubt.  State  v.  Richart,  57  Iowa,  245  ;  Hyatt 
V.  State  (Tex.),  25  S.  W.  291. 

Proof  of  good  character  alone  may  be  sufficient  to  raise  a  rea- 
sonable doubt.  Com.  7,'.  Rargar,  2  Law.  T.  (n.  s.)  37;  Becker 
7'.  Com.,  9  Atl.  510  ;  Com.  v.  Shaub,  5  Lane.  Bar,  121  ;  Com.  v. 
Harmon,  199  Pa.  521. 

Mitigating  Circumstances. 

It  is  undoubtedly  better  use  of  the  term  to  say  that  the  burden 
of  proof  rests  throughout  the  trial  on  the  prosecution  to  prove  the 
fact  that  a  crime  has  been  commitlcd  and  that  the  defendant  is 
guilty ;  this  would  make  it  the  duty  of  the  prosecution  to  estab- 
lish the  absence  of  circumstances  of  mitigation  or  justification. 
But  when  the  State  has  proved  a  homicide  and  the  fact  that  the 
defendant  did  the  act  producing  death,  and  none  of  the  circum- 
stances proved  indicate  self-defence,  the  burden  of  producing 
evidence  of  such  circumstances  is  on  the  defendant.  It  is  often 
said,  however,  that  the  burden  of  proof  is  on  the  defendant  to 
establish  self-defence.  Miller  v.  State,  107  Ala.  40  ;  State  v. 
Snelbaker,  8  Ohio  Dec.  466. 

The  burden  of  proving  mitigating  circumstances  is  not  on  the 
defendant,  although   if  tlie   evidence  of  the  State  shows  no  such 


2/2  «  AMERICAN   NOTES. 

circumstances  the  burden  of  producing  evidence  of  them  is  on 
the  defendant.  Alexander  v.  People,  96  111.  96  ;  People  v.  Cal- 
laghen,  4  Utah,  49  ;  Com.  z/.  Webster,  5  Cueh.  295,  52  Am.  Dec. 
711;  McDaniel  ?;.  State,  8  Smedes  &  M.  (Miss.)  401;  Haw- 
thorne 7'.  State,  58  Miss.  778;  People  v.  Hill,  49  Hun,  432  ; 
People  V.  Downs,  56  Hun,  5  ;  (ioodall  v.  State,  i  Ore.  333,  80 
Am.  Dec.  396  ;  Richardson  v.  State,  9  Tex.  .Ajjp.  612  ;  Same  v. 
Same,  32  Tex.  Cr.  Rep.  524,  24  S.  W.  894  ;  State  v.  Tabor,  95 
Mo.  585  (where  it  is  said  that  the  burden  of  proof  is  then  on  the 
defendant)  ;  State  v.  Bertrans,  3  Ore.  61  (same)  ;  Gibson  z;.  State, 
89  Ala.  121  (same)  ;  State  v.  Keith,  9  Nev.  15  (same)  ;  State  v. 
Mazon,  90  N.  C.  676  (same)  ;  Terr.  v.  Mc Andrews,  3  Mont. 
15S  ;  and  Terr.  v.  Rowand,  8  Mont,  iio  (same  under  statute). 

The  burden  is  on  the  prosecution  to  show  the  killing,  the 
malice,  and  the  lack  of  justification  or  excuse.  People  v.  Downs, 
56  Hun,  5  ;  Goodall  v.  State,  i  Ore.  333,  80  Am.  Dec.  396  ; 
Jones  V.  State,  13  Tex.  App.  i. 

'J^he  jury  may  be  charged  that  the  evidence  of  the  State 
may  be  such  as  to  put  the  burden  of  producing  evidence  of 
justification  or  mitigation  upon  the  defendant.  Bell  v.  State, 
69  Ga.   752. 

Where  the  evidence  of  the  State  indicates  that  the  homicide 
may  be  manslaughter  instead  of  murder,  the  jury  should  so  find 
without  any  evidence  on  the  part  of  the  accused  (Reid  v.  State, 
50  Ga.  556)  ;  and  in  such  case  the  burden  of  proving  the  miti- 
gating circumstances  is  not  on  the  accused.  Tweedy  v.  State, 
5  io^va,  433. 

It  is  generally  held  to  be  error  to  instruct  the  jury  that  when 
a  homicide  has  been  proved  the  burden  of  proving  mitigating 
circumstances  is  on  the  accused,  unless  the  charge  further  states 
"  unless  they  appear  from  the  evidence  proved  against  him." 
McDaniel  v.  State,  8  Smedes  &  M.  (Miss.)  401,  47  Am.  Dec.  93  ; 
Hawthorne  57.  State,  58  Miss.  778;  Com.  v.  Webster,  5  Cush. 
295  ;  Murphy  v.  People,  37  111.  447  ;  contra,  Cathcart  v.  Cora., 
37  Pa.   108. 

In  Trumble  v.  Terr.,  3  Wyo.  280,  6  L.  R.  A.  384,  it  was  held 
error  to  charge  the  jury  that  after  the  killing  is  proved  with  no 
evidence  of  mitigating  circumstances,  "  the  burden  then  falls  upon 
the  defendant  to  show  either  that  such  killing  was  justifiable  or 


AMERICAN  NOTES.  2/2  <7 

excusable,  or  that  it  was  attended  by  such  facts  as  would  limit 
such  killing  to  the  crime  of  manslaughter." 

Same  —  Bufden  Said  to  Be  on  Defendant. 

Cases  where  it  is  said  that  the  burden  is  on  defendant  to 
show  justification,  or  mitigating  circumstances,  or  accident  in  homi- 
cide. State  V.  Jones,  98  N.  C.  651  ;  State  v.  Mazon,  90  N.  C. 
676  ;  Terr.  v.  Rowand,  8  Mont,  iio;  State  v.  Rollins,  113  N.  C. 
722  ;  Lewis  v.  State,  ^^  Ala.  1 1  ;  Lewis  v.  State,  90  Ga.  95  ;  State 
v.  Bonds,  2  Nev.  265. 

The  burden  is  said  not  to  be  on  the  State  to  show  that  there  was 
no  justification  for  a  homicide.     State  v.  Brown,  64  Mo.  367. 

Burden  is  on  the  accused  to  show  that  he  killed  the  deceased 
to  prevent  him  from  committing  murder.  Mitchell  v.  State,  22 
Ga.  211,  68  Am.  Dec.  493. 

Where  defendant  is  charged  with  manslaughter  by  producing 
an  abortion,  the  burden  of  proving  that  the  abortion  was  neces- 
sary to  preserve  life  is  on  the  defendant.     People  v.  McGonegal, 

62  Hun,  622. 

The  defendant  has  the  burden  of  proving  by  a  preponderance 
of  the  evidence  that  a  homicide  was  justifiable.     People  v.  Raten, 

63  Gal.  421  ;  People  v.  Tidwell,  4  Utah,  506,  12  Pac.  61  (under 
statute). 

The  Galifornia  Code  places  the  burden  of  proving  mitigating  or 
justifying  circumstances  on  the  defendant  in  certain  cases.  People 
V.  Tarm  Poi,  86  Cal.  225  ;  but  see  People  v.  Powell,  87  Cal.  348, 
where  it  is  held  that  the  defendant  need  not  show  by  a  prepon- 
derance of  the  evidence  that  a  homicide  was  justifiable.  And  see 
also  People  v.  Lemperle,  94  Cal.  45. 

Where  the  evidence  of  the  State  indicates  murder,  the  burden 
of  proving  mitigating  circumstances,  not  by  a  preponderance  of 
the  evidence,  but  to  the  satisfaction  of  the  jury,  is  put  on  the 
accused.  A  doubt  as  to  such  mitigating  circumstances  is  to  be 
resolved  against  him.     State  v.  Byers,  100  N.  C.  512. 

Defendant  must  show  affirmatively  the  homicide  was  exgusable 
or  accidental  or  not  malicious  unless  it  already  appears  to  be  so 
from  the  evidence  of  the  prosecution.  Dixon  v.  State,  13  Fla. 
636  ;  ]\Iurphy  v.  People,  37  111.  447. 

Homicide  is  presumed  to  be  murder,  and  the  burden  of  show- 


2/2/  AMERICAN   NOTES. 

iiig  it  to  be  a  crime  of  less  degree  is  on  the  accused.     Com. 
7'.  Drum,  5S  Pa.  9. 

Mitigating  circumstances  need  not  be  established  beyond  a 
reasonable  doubt,  but  the  jury  must  be  satisfied  they  are  true. 
State  V.  KUick,  60  N.  C.  450,  86  Am.  Dec.  442. 

Insanity  —  Burden  on  Defendant  to  Prove  beyond 
Reasonable  Doubt. 

Where  insanity  is  set  up  as  a  defence,  most  courts  put  the 
burden  of  proving  it  upon  the  defendant.  A  few  require  him 
to  prove  it  beyond  a  reasonable  doubt.  State  v.  De  Ranee,  34  La. 
Ann.  1 86,  44  Am.  Rep.  426. 

Insanit)'  —  Preponderance  Required  of  Dcfendaiit. 

Many  other  courts  require  the  defendant  to  establish  his  insan- 
ity by  a  preponderance  of  the  evidence,  or  to  the  satisfaction  of 
the  jury.  People  v.  McCann,  16  N.  Y.  58,  69  Am.  Dec.  642  ; 
State  V.  Adin,  7  Ohio  Dec.  25  ;  State  v.  Lawrence,  57  Me.  574  ; 
State  V.  Huting,  21  Mo.  464  ;  Graves  v.  State,  45  N.  J.  L.  203, 
347  ;  Pannell  v.  Com.,  9  Lane.  Bar  (Pa.),  82  ;  Boswell  v.  Com., 
20  Gratt.  (Va.)  860. 

Burden  of  proving  insanity  by  a  fair  preponderance  of  the  evi- 
dence is  on  the  accused  (Com.  v.  Wireback,  190  Pa.  138  ;  Com. 
V.  Bezek,  168  Pa.  603;  Com.  z^.  Heidler,  191  Pa.  375  ;  Ortwein 
V.  Com.,  76  Pa.  414;  Lynch  v.  Com.,  77  Pa.  205  ;  Com.  v.  Kil- 
patrick,  204  Pa.  21S)  ;  but  he  need  not  prove  il  "beyond  a  rea- 
sonable doubt."      Meyers  v.  Com.,  83  Pa.  131. 

On  an  indictment  for  crime,  the  defence  being  insanity,  such 
insanity  must  be  proved  by  a  preponderance  of  evidence,  in  order 
to  obtain  an  acquittal,     Kelch  v.  State,  55  Ohio  St.  146. 

The  absence  of  motive  raises  no  presumption  of  insanity.  Car- 
ter V.  State,  12  Tex.  500. 

The  burden  of  proving  insanity  as  a  defence  is  on  the  accused, 
because  of  the  presumption  of  sanity.     McKenzie  v.  State,  26  Ark. 

334. 

Lisanity  as  a  defence  must  be  affirmatively  proved  ;  the  jury 
must  be  satisfied  that  the  defendant  was  not  sane.  State  v.  Law- 
rence, 57  Me,  574  ;  State  v.  De  Ranee,  34  La.  Ann.  1S6,  44  Am. 


AMERICAN   NOTES.  2/2  ^ 

Rep.  426  ;  Carter  v.  State,  12  Tex.  500,  62  Am.  Dec.  539  ;   State 
V.  Baber,  11  Mo.  App.  5S6. 

Insanify  —  Bun/en  on  State. 

And  many  courts  leave  the  burden  of  proving  sanity  upon  the 
prosecution  and  hold  that  the  jury  should  acquit  the  defendant  if 
they  have  a  reasonable  doubt  of  his  sanity.  Polk  v.  State,  19  Ind. 
170,  81  Am.  Dec.  382  ;  State  v.  Crawford,  11  Kan.  32  ;  Ford  v. 
State,  73  Miss.  734,  35  L.  R.  A.  1 1  7  ;  Dove  v.  State,  50  Tenn. 

348. 

The  State  does  not  have  the  burden  of  proving  sanity  beyond  a 
reasonable  doubt.     Craves  v.  State,  45  N.  J.  L.  203. 

In  State  v.  Crawford,  1 1  Kan.  32,  it  was  held  that  the  State  must 
establish  defendant's  sanity  beyond  a  reasonable  doubt. 

Self-Defence  —  Prcponderatice  Required  of  Defendant. 

There  are  many  jurisdictions  that  require  the  defendant  to 
establish  the  fact  that  he  acted  in  self-defence  by  a  preponder- 
ance of  the  evidence.  This,  of  course,  is  putting  the  burden  of 
proof  on  him.  U.  S.  v.  Kan-gi-shun-ca,  3  Dak.  106;  People 
V.  Schryver,  42  N.  Y.  i,  i  Am.  Rep.  480;  People  v.  Riordan, 
117  N.  Y.  71  ;  Silvus  V.  State,  22  Ohio  St.  90;  State  v.  Bertrand, 
3  Ore.  61  ;  Slate  v.  Brown,  34  S.  C.  41  ;  State  v.  Jones,  20  \V. 
Va.  764. 

The  burden  of  proving  that  the  act  was  done  in  self-defence  is 
on  the  defendant  (Silvus  v.  State,  22  Ohio  St.  90;  Roden  v. 
State,  97  Ala.  54;  Smith  v.  State,  86  Ala.  28;  Weaver  v.  State, 
24  Ohio  St.  584;  Com.  v.  Drum,  58  Pa.  9),  unless  the  evi- 
dence of  the  vState  has  already  brought  out  facts  from  which 
the  jury  may  infer  self-defence.  People  v.  Hong  Ah  Duck,  61 
Cal.  387;  De  Arman  v.  State,  71  Ala.  351;  Lyons  v.  People, 
137  111.  602. 

Self-defence  must  be  established  by  the  defendant  by  a  pre- 
ponderance of  the  testimony.     State  v.  ^^'elch,  29  S.  C.  4. 

The  State  has  not  the  burden  of  proving  that  the  accused  had 
another  means  of  escape  from  the  deceased  ;  he  must  show  that 
he  had  none.  Cleveland  v.  State,  86  Ala.  i  ;  Stitt  v.  State,  91 
Ala.  10,  24  Am.  St.  Rep.  853. 


2/2  r  AMERICAN   NOTES. 

Self-Defence  —  Biiriien  on  State. 

Logically  it  would  seem  that  the  defendant  ought  to  be  ac- 
quitted if  his  evidence  raises  a  reasonable  doubt  that  he  may  have 
acted  in  self-defence,  and  many  auilioriiies  so  hold.  Miller  v. 
State,  107  Ala.  40;  State  v.  Porter,  34  Iowa,  131  ;  McKenna  v. 
State,  61  Miss.  589  ;  Tiffany  v.  Com.,  121  Pa.  165. 

The  burden  of  proving  that  the  accused  was  not  acting  in  self- 
defence  is  on  the  State  (State  v.  Donahoe,  78  Iowa,  486  ;  State 
V.  Dillon,  74  Iowa,  653  ;  People  v.  Coughlin,  65  Mich.  704)  ;  and 
in  Same  v.  S-ime,  67  Mich.  466,  it  was  held  that  the  burden  of 
proof  was  upon  the  State  to  show  not  only  that  the  act  was  not  in 
self-defence,  but  that  the  accused  had  no  reasonable  belief  that 
he  was  in  great  danger  from  the  deceased.  Gravely  v.  State,  38 
Neb.  871  ;  People  v.  Schryver,  42  N.  Y.  i,  i  Am.  Rep,  480; 
People  V.   Riordan,  50  Hun,  602;  People  v.  Downs,  123  N.  Y. 

558. 

The  jury  should  not  be  instructed  that  the  burden  of  showing 
self-defence  is  on  the  accused  when  the  evidence  of  the  prosecu- 
tion already  tends  to  show  it.     People  v.  Elliott,  80  Cal.  296. 

Where  defendant  killed  deceased  during  a  struggle,  the  burden 
of  proving  that  the  act  was  not  justifiable  is  on  the  State.  State 
V.  Cross,  68  Iowa,  180. 

The  State  must  prove  beyond  a  reasonable  doubt  that  the 
defendant  did  not  act  in  self-defence.  State  v.  Bone  (Iowa),  87 
N.  W.  507. 

There  is  no  doubt  that  the  defendant  need  not  prove  the  fact 
that  he  acted  in  self-defence  beyond  a  reasonable  doubt.  People 
V.  Lee  (Cal.),  8  Pac.  685  ;  Wacaser  v.  People,  134  III.  438,  23 
Am.  St.  Rep.  683  ;  Schaffer  v.  State,  22  Neb.  557,  3  Am.  St.  Rep. 
274  ;  People  v.  Schryver,  42  N.  Y.  i,  i  Am.  Rep.  480;  State  v. 
Ariel,  38  S.  C.  221  ;   Cockrell  v.  Com.,  95  Ky.  22. 

Alibi  —  Burden   of  Proof. 

A  preponderance  of  evidence  is  not  necessary  of  an  alibi.  The 
burden  of  proof  is  not  changed  by  such  a  defence.  Walters  v. 
State,  39  Ohio  St.  215  ;  Morehead  v.  State,  34  Ohio  St.  212. 

Setting  up  an  alibi  as  a  defence  does  not  change  the  burden  of 
proof.     Fife  v.  Com.,  29  Pa.  429  ;  Briceland  v.  Com.,  74  Pa.  463. 


AMERICAN   NOTES.  2/2  J 

As  to  the  weight  of  evidence  in  cases  where  an  ahbi  is  set  up 
Chief  Justice  Shaw  says  :  "In  the  ordinary  case  of  an  alibi,  when 
a  party  charged  with  a  crime  attempts  to  prove  that  he  was  in 
another  place  at  the  time,  all  the  evidence  tending  to  prove  that 
he  committed  the  offence  tends  in  the  same  degree  to  prove  that 
he  was  at  the  place  when  it  was  committed.  If,  therefore,  the 
proof  of  the  alibi  does  not  outweigh  the  proof  that  he  was  at  the 
place  when  the  offence  was  committed,  it  is  not  sufficient."  Com. 
V.  \Vebster,  5  Cush.  295,  324. 

Various  Facts  —  Burden  on  Defendant. 

In  rape,  the  burden  is  on  the  defendant  to  show  that  the  girl  is 
not  of  good  repute.     Com.  v.  Allen,  135  Pa.  483. 

In  an  action  for  selling  goods  without  a  licence,  the  burden  is 
on  the  defendant  to  show  that  he  had  one.  Com.  v.  Brownbridge, 
I  Brewst.  399,  s.  c.  6  Phila.  318;  Com.  v.  Dilbo,  29  Leg.  Int. 
150. 

Before  rules  applicable  to  the  corroboration  of  an  accomplice 
are  applied,  the  defendant  must  show  by  a  preponderance  of  the 
evidence  that  the  witness  in  question  was  an  accomplice.  State 
V.  Smith,  102  Iowa,  656,  665. 

Burden  is  on  defendant  to  show  that  the  gun  he  aimed  was  not 
loaded  and  that  he  knew  it  was  not.    Caldwell  v.  State,  5  Tex.  18. 

Where  a  wound  was  given  with  murderous  intent,  the  burden 
of  proving  that  death  was  due  not  to  the  wound  but  to  neglect  or 
malpractice  is  on  the  defendant.  State  v.  Briscoe,  30  La.  Ann. 
433  ;  State  v.  Scott,  12  La.  Ann.  274.  But  see  McBeth  v.  State, 
50  Miss.  81. 

Defendant  cannot  mitigate  his  offence  by  laying  the  death  of 
deceased  upon  the  misconduct  or  malpractice  of  the  physicians 
unless  it  is  very  clearly  shown.  State  v.  Scott,  12  La.  Ann.  274. 
The  burden  of  proving  such  malpractice  is  on  the  defendant. 
State  V.  Briscoe,  30  La.  Ann.  433. 


CHAPTER  VII 

PROOF  OF  THE  CORPUS  DELICTI. 


Section  i. 

general  doctrine  as  to  the  proof  of  the 
corpus  delicti. 

Every  allegation  of  the  commission  by  any  person 
of  legal  crime  involves  the  establishment  of  two 
distinct  propositions  ;  namely,  that  an  act  has  been 
committed  from  which  legal  responsibility  arises,  and 
that  the  guilt  of  such  act  attaches  to  a  particular  in- 
dividual, though  the  evidence  is  not  always  separable 
into  distinct  parts,  or  applicable  to  one  only  of  those 
propositions  apart  from  the  other. 

Such  a  complication  of  difficulties  occasionally 
attends  the  proof  of  crime,  and  so  many  cases  have 
occurred  of  convictions  for  alleged  offences  whichhave 
never  existed,  that  it  is  a  fundamental  and  inflexible 
rule  of  legal  procedure,  of  universal  obligation,  that 
no  person  shall  be  required  to  answer  an  accusation, 
or  be  involved  in  the  consequences  of  guilt,  without 
satisfactory  proof  of  the  corpus  delicti,  either  by  direct 
evidence  or  by  irresistible  grounds  of  presumption  [a). 
If  it  be  objected  that  rigorous  proof  of  the  corpus 
delicti  is  sometimes  unattainable,  and  that  the  effect 
of  exacting  it  must  be  that  crimes  will  occasionally 

{a)  Rex  V.  Burdett^  4  B.  and  Aid.  at  p.  123. 
C.E.  T 


?74  PROOF   OF   THE   CORPUS    DELICTI 

pass  unpunished,  it  must  be  admitted  that  such  may 
possibly  be  the  result ;  but,  it  is  answered  that, 
where  there  is  no  proof,  or,  which  is  the  same  thing, 
no  sufficient  legal  proof  of  crime,  there  can  be  no 
legal  criminality.  In  penal  jurisdiction  there  can  be 
no  middle  term  ;  the  party  must  be  absolutely  and 
unconditionally  guilty  or  not  guilty.  Nor  under 
any  circumstances  can  considerations  of  supposed 
expediency  ever  supersede  the  immutable  obligations 
of  justice  ;  and  occasional  impunity  of  crime  is  an 
evil  of  far  less  magnitude  than  the  conviction  and 
punishment  of  the  innocent.  Such  considerations 
of  mistaken  policy  led  some  of  the  writers  on  the 
civil  and  canon  laws  to  modify  their  rules  of  evidence, 
according  to  the  difficulties  of  proof  incidental  to 
particular  crimes,  and  to  adopt  the  execrable  maxim, 
that  the  more  atrocious  was  the  offence,  the  slighter 
was  the  proof  necessary  ;  in  atrocissimis  leviores 
conjecturcB  sufficmnt,  et  licet  jiidici  jura  transgredi. 
Such,  indeed,  is  the  logical  and  inevitable  conse- 
quence, when,  from  whatever  motive,  the  plea  of 
expediency  is  permitted  to  influence  judicial  integrity. 
The  clearest  principles  of  justice  require,  that  what- 
ever the  nature  of  the  crime,  the  amount  and  inten- 
sity of  the  proof  shall  in  all  cases  be  such  as  to 
produce  the  full  assurance  of  moral  certainty  {b). 

Section  2. 

proof  of  the  corpus  delicti   by  circumstantiai, 

evidence. 

But  it  is  clearly  established,  that  it  is  not  neces- 
sary that   the  corpus   delicti  should  be  proved  by 
(^)  See  Ch,  i.  s.  3,  p.  5,  supra. 


BY    CIRCUMSTANTIAL    EVIDENCE.  275 

direct  and  positive  evidence,  and  it  would  be  most 
unreasonable  to  require  such  evidence.  Crimes,  and 
especially  those  of  the  worst  kinds,  are  naturally 
committed  at  chosen  times,  and  in  darkness  and 
secrecy  ;  and  human  tribunals  must  act  upon  such 
indications  as  the  circumstances  of  the  case  present, 
or  society  must  be  broken  up.  Nor  is  it  very 
often  that  adequate  evidence  is  not  afforded  by 
the  attendant  and  surrounding  facts,  to  remove  all 
mystery,  and  to  afford  such  a  reasonable  degree  of 
certainty  as  men  are  daily  accustomed  to  regard  as 
sufficient  in  the  most  important  concerns  of  life  :  to 
expect  more  would  be  equally  needless  and  absurd. 

In  Burdett's  case  (c)  this  subject  underwent  much 
discussion.  The  facts  were  that  in  18 19  Sir  Francis 
Burdett  published  a  letter  in  the  newspapers  to  the 
Electors  of  Westminster  containing  severe  strictures 
upon  the  behaviour  of  some  troops  at  Manchester, 
and  calling  a  meeting  at  Westminster,  presumably 
to  protest  against  the  use  of  a  standing  army  in 
times  of  peace.  The  language  was  somewhat 
violent,  and  contained  the  following  words,  which 
would  attract  but  little  attention  at  the  present  day, 
though  quite  sufficient  to  form  the  basis  of  an  indict- 
ment, for  seditious  libel  in  those  days  : — "  What  !  kill 
men  unarmed  and  unresisting !  and,  gracious  God, 
women  too,  disfigured,  maimed,  cut  down,  and 
trampled  upon  by  dragoons ! "  At  the  trial  at 
Leicester  Assizes  before  Mr.  Justice  Best,  the  evi- 
dence was  that  the  letter  was  dated  the  22nd  of 
August    from    Kirby   Park    in    Leicestershire,    had 

(<r)  4  B.  &  Aid.  95. 

T  2 


276  PROOF    OF   THE    CORPUS    DELICTI 

been  delivered  in  London  by  a  friend  of  the 
defendant's  to  one  Brookes,  who  could  not  say  for 
certain  whether  it  was  delivered  open  or  sealed,  but 
that  it  contained  these  words  "  Forward  this  to 
Brookes,"  and  had  no  trace  of  any  seal  or  postmark. 
It  also  appeared  that  the  defendant  was  in  Leicester- 
shire on  the  22nd  of  August,  and  the  following  day, 
and  did  not  leave  the  county  until  after  the  publica- 
tion of  the  letter  in  the  newspapers  on  the  25th  of 
August.  The  defendant  admitted  that  he  wrote  the 
letter.  It  was  contended  that  there  was  no  evidence 
of  publication  in  Leicestershire,  but  the  learned 
judge  overruled  the  objection,  and  the  jury  convicted. 
Upon  an  application  for  a  nev/  trial,  the  court  held 
by  a  majority,  that  there  was  evidence  of  a  publica- 
tion in  Leicestershire  even  if  the  letter  had  been 
delivered  sealed  to  the  Post  Office  there  ;  but  the 
discussion  turned  chiefly  upon  whether  publication 
in  Leicestershire  could  be  pi'esztmed  from  the  facts 
proved  in  evidence,  which  were  uncontradicted  by 
any  evidence  on  the  defendant's  behalf.  Mr.  Justice 
Best  said,  "  When  one  or  more  things  are  proved 
from  which  our  experience  enables  us  to  ascertain 
that  another,  not  proved,  must  have  happened,  we 
presume  that  it  did  happen,  as  well  in  criminal  as  in 
civil  cases.  Nor  is  it  necessary  that  the  fact  not 
proved  should  be  established  by  irrefragable  in- 
ference. It  is  enough  if  its  existence  be  highly 
probable,  particularly  if  the  opposite  party  has  it  in 
his  power  to  rebut  it  by  evidence,  and  yet  offers 
none  ;  for  then  we  have  something  like  an  admis- 
sion that  the  presumption  is  just.  It  has  been 
solemnly    decided,    that     there    is     no    difference 


BY    CIRCUMSTANTIAL    EVIDENCE.  277 

between  the  rules  of  evidence  in  civil  and  criminal 
cases.  If  the  rules  of  evidence  prescribe  the  best 
course  to  get  at  truth,  they  must  be  and  are  the 
same  in  all  cases  and  in  all  civilized  countries. 
There  is  scarcely  a  criminal  case,  from  the  highest 
down  to  the  lowest,  in  which  courts  of  justice  do 
not  act  upon  this  principle "  (rt').  His  Lordship 
added,  "It  therefore  appears  to  me  quite  absurd  to 
state  that  we  are  not  to  act  upon  presumption. 
Until  it  pleases  Providence  to  give  us  means  beyond 
those  our  present  faculties  afford  of  knowing  things 
done  in  secret,  we  must  act  on  presumptive  proof, 
or  leave  the  worst  crimes  unpunished.  I  admit, 
where  presumption  is  attempted  to  be  raised  as  to 
the  corpus  delicti,  that  it  ought  to  be  strong  and 
cogent  '  {e).  Mr.  Justice  Holroyd  said,  "  No  man  is 
to  be  convicted  of  any  crime  upon  mere  naked  pre- 
sumption. A  light  or  rash  presumption,  not  arising 
either  necessarily,  probably,  or  reasonably,  from  the 
facts  proved,  cannot  avail  in  law.  But  crimes  of  the 
highest  nature,  more  especially  cases  of  murder,  are 
established,  and  convictions  and  executions  there- 
upon frequently  take  place  for  guilt  most  convin- 
cingly and  conclusively  proved,  upon  presumptive 
evidence  only  of  the  guilt  of  the  party  accused  ;  and 
the  well-being  and  security  of  society  much  depend 
upon  the  receiving  and  giving  due  effect  to  such 
proof  The  presumptions  arising  from  those  proofs 
should,  no  doubt,  and  most  especially  in  cases  of 
great  magnitude,  be  duly  and  carefully  weighed. 
They  stand  only  as  proofs  of  the  facts  presumed  till 
the  contrary  be  proved,  and  those  presumptions  are 
{d)  4  B.  &  Aid.,  at  p.  122.  ie)  lb.  at  p.  123, 


278       PROOF  OF  THE  CORPUS  DELICTI 

either  weaker  or  stronger  according  as  the  party 
has,  or  is  reasonably  to  be  supposed  to  have  it  in 
his  power  to  produce  other  evidence  to  rebut  or  to 
weai'cen  them,  in  case  the  facts  so  presumed  be  not 
true,  and  according  as  he  does  or  does  not  produce 
such  contrary  evidence  "  (/).  Mr.  Justice  Bayley 
said,  "  No  one  can  doubt  that  presumptions  may  be 
made  in  criminal  as  well  as  in  civil  cases.  It  is  con- 
stantly the  practice  to  act  upon  them,  and  I  appre- 
hend that  more  than  one-half  of  the  persons  con- 
victed of  crimes  are  convicted  on  presumptive 
evidence.  If  a  theft  has  been  committed,  and 
shortly  afterwards  the  property  is  found  in  the  pos- 
session of  a  person  who  can  give  no  account  of  it,  it 
is  presumed  that  he  is  the  thief,  and  so  in  other 
criminal  cases  ;  but  the  question  always  is,  whether 
there  are  sufficient  premises  to  warrant  the  presump- 
tion "  (,;f^).  Lord  Chief  Justice  Abbott  said,  "A  fact 
must  not  be  inferred  without  premises  which  will 
warrant  the  inference  ;  but  if  no  fact  could  be  thus 
ascertained  by  inference  in  a  court  of  law.  very  few 
offenders  could  be  brought  to  punishment.  In  a 
great  portion  of  trials,  as  they  occur  in  practice,  no 
direct  proof  that  the  party  accused  actually  com- 
mitted the  crime  is  or  can  be  given  ;  the  man  who 
is  charged  with  theft  is  rarely  seen  to  break  the 
house  or  take  the  goods  ;  and,  in  cases  of  murder,  it 
rarely  happens  that  the  eye  of  any  witness  sees  the 
fatal  blow  struck,  or  the  poisonous  ingredient  poured 
into  the  cup"  [k).  The  law  on  this  point  was  also 
very  emphatically  declared  by  Mr.  Baron  Parke  in 

(/)  4  B.  &  Aid.  at  p.  139. 

(^)  Ih.  at  p.  149.  {h)  lb.  at  p.  161. 


BY    CIRCUMSTANTIAL   EVIDENCE.  279 

Tavvell's  case.  His  Lordship  said,  "  The  jury  had 
been  properly  told  by  the  counsel  for  the  prosecu- 
tion, that  circumstantial  evidence  is  the  only  evi- 
dence which  can  in  cases  of  this  kind  lead  to  dis- 
covery. There  is  no  way  of  investigating  them 
except  by  the  use  of  circumstantial  evidence  ;  but 
Providence  has  so  ordered  the  affairs  of  men  that  it 
most  frequently  happens  that  great  crimes  com- 
mitted in  secret  leave  behind  them  some  traces,  or 
are  accompanied  by  some  circumstances  which  lead 
to  the  discovery  and  punishment  of  the  offender  (z) ; 
therefore  the  law  has  wisely  provided  that  you  need 
not  have,  in  cases  of  this  kind,  direct  proof,  that  is, 
the  proof  of  eye-witnesses,  who  see  the  fact  and  can 
depose  to  it  upon  their  oaths.  It  is  impossible, 
however,  not  to  say  that  that  is  the  best  proof,  if 
that  proof  is  offered  to  you  upon  the  testimony  of 
men  whose  veracity  you  have  no  reason  to  doubt ; 
but,  on  the  other  hand,  it  is  equally  true  with  regard 
to  circumstantial  evidence,  that  the  circumstances 
may  often  be  so  clearly  proved,  so  closely  connected 
with  it,  or  leading  to  one  result  in  conclusion,  that 
the  mind  may  be  as  well  convinced  as  if  it  were 
proved  by  eye-witnesses.  This  being  a  case  of 
circumstantial  evidence,  I  advise  you,*'  said  the 
learned  judge,  "  as  I  invariably  advise  juries,  to  act 
upon  a  rule,  that  you  are  first  to  consider  what  facts 
are  clearly,   distinctly,   indisputably  proved  to  your 

(/)  "  Ces  circonstances  sont  autant  de  temoins  muets,  que  la 
Providence  semble  avoir  places  autour  du  crime,  pour  fair  jaillir  la 
lumi^re  de  Tombre  dans  laquelle  I'agent  s'est  efforce  d'ensevelir  le 
fait  principal  ;  elles  sont  comme  un  fanal  qui  eclaire  I'esprit  du  juge, 
et  le  dirige  vers  des  traces  certaines,  qu'il  suffit  de  suivre  pour 
atteindre  k  la  veritd" — Traite  de  la  Preuve,  par  Mittermaier,  ch.  53. 


28o  PROOF    OF    THE    CORPUS    DELICTI 

satisfaction  ;  and  you  are  to  consider  whether  those 
facts  are  consistent  with  any  other  rational  supposi- 
tion than  that  the  prisoner  is  guilty  of  the  offence. 
If  you  think  that  the  facts  in  this  case  are  all  con- 
sistent with  the  supposition  that  the  prisoner  is 
guilty,  and  can  offer  no  resistance  to  that,  except 
the  character  the  prisoner  has  borne,  and  except  the 
supposition  that  no  man  would  be  guilty  of  so 
atrocious  a  crime  as  that  laid  to  the  charge  of  the 
prisoner,  that  cannot  much  influence  your  minds  ; 
for  we  all  know  that  crimes  are  committed,  and 
therefore  the  existence  of  the  crime  is  no  incon- 
sistency with  the  other  circumstances,  if  those 
circumstances  lead  to  that  result.  The  point  for 
you  to  consider  is,  whether,  attending  to  the 
evidence,  you  can  reconcile  the  circumstances  ad- 
duced in  evidence  with  any  other  supposition  than 
that  he  has  been  guilty  of  the  offence  ?  If  you  can- 
not, it  is  your  bounden  duty  to  find  him  guilty  ;  if 
you  can,  then  you  will  give  him  the  benefit  of  such 
a  supposition.  All  that  can  be  required  is — not 
absolute,  positive  proof — but  such  proof  as  con- 
vinces you  that  the  crime  has  been  made  out"  (/§). 

The  same  general  principle  prevails  with  regard 
to  the  proof  of  crimes  of  every  description,  and  of 
every  element  of  the  corpus  delicti.  Thus,  on  the  trial 
of  a  man  for  stealing  pepper,  it  appeared  that  on  the 
first  floor  of  a  warehouse  a  large  quantity  of  pepper 
was  kept  in  bulk,  and  that  the  prisoner  was  met 
coming  out  of  the  lower  room  of  the  warehouse, 
where  he  had  no  business  to  be,  having  on  him  a 
quantity  of  pepper    of   the    same    description    with 

{ll)  Reg.  V.  Tawell^  Aylesbury  Spr.  Ass.  1845,  pp.  313-317,  infra. 


BY    CIRCUMSTANTIAL    EVIDENCE.  28 1 

that  ill  the  room  above.  On  being  stopped  he 
threw  down  the  pepper,  and  said,  "  I  hope  you  will 
not  be  hard  with  me."  From  the  large  quantity  in 
the  warehouse  it  could  not  be  proved  that  any 
pepper  had  been  taken  from  the  bulk.  It  was 
urged  on  behalf  of  the  prisoner  that  there  must  be 
direct  and  positive  evidence  of  a  corpus  delicti,  and 
that  presumptive  evidence  was  insufficient  for  that 
purpose  ;  but  the  Court  for  Crown  Cases  Reserved 
held  that  the  prisoner  had  been  rightly  convicted  (/). 
Mr.  Justice  Maule  said  that  the  offence  with  which 
the  prisoner  is  charged  must  be  proved,  and  that 
involves  the  necessity  of  proving  that  the  pro- 
secutor's goods  have  been  taken.  But  why,  con- 
tinued the  learned  Judge,  is  that  to  be  differently 
proved  from  the  rest  of  the  case?  If  the  circum- 
stances satisfy  the  jury,  what  rule  is  there  which 
renders  some  more  positive  and  direct  proof 
necessary  }  And  he  mentioned  the  case  of  a  father 
and  two  sons,  who  were  convicted  of  stealing  from 
their  employers  a  quantity  of  shoes  and  materials 
for  making  shoes,  though  the  prosecutors  said  their 
stock  was  so  large  that  they  could  not  say  they  had 
missed  anv  one  of  the  articles  allecred  to  have  been 
stolen  i^Jt). 

But  It  is  not  necessary  that  every  individual  fact 
should  be  indisputably  proved.  On  a  trial  for 
forgery,  in  Scotland,  Lord  Meadowbank  said  :  "  I 
must  tell  you  that  the  learned  counsel  for  the  panel 
stated  the  law  incorrectly,  when  he  said  that  you 

(/)    Reg.  V.  Burton,  23  L.  J.,  N.  S.,  M.   C.   52  ;  and  see  Reg.  v. 
Dredge,  i  Cox,  235  ;  and  p.  183  supra, 
{tn)  Reg.  V.  Burton  (last  note). 


202       PROOF  OF  THE  CORPUS  DELICTI 

must  have  decisive,  irrefragable,  and  conclusive 
proof  of  every  point  in  a  case  like  the  present, 
before  finding  the  instrument  to  be  forged.  The 
law  is  quite  the  reverse.  You  are  to  take  all  the 
evidence  together,  and  you  are  bound  to  consider 
whether  it  amounts  and  comes  up  to  affording  a  moral 
conviction  in  your  minds  equivalent  to  the  positive 
and  direct  proof  of  a  fact  "  (;/). 

Section  3. 

application  of  the  general   principle  to  proof 
of  the  corpus  delicti  in  cases  of  homicide. 

The  general  principles  of  evidence  under  discussion 
are  so  supremely  important  in  reference  to  cases  of 
homicide,  that  it  will  be  expedient  to  illustrate  the 
application  of  them  at  some  length. 

(i)  The  discovery  of  the  body  necessarily  affords 
the  best  evidence  of  the  fact  of  death,  and  of  the 
identity  of  the  individual,  and  most  frequently  also 
of  the  cause  of  death  (o).  A  conviction  for  murder 
is  therefore  never  allowed  to  take  place,  unless  the 
body  has  been  found,  or  there  is  equivalent  proof  of 
death  by  circumstantial  evidence  leading  directly  to 
that  result  (/),  and  many  cases  have  shown  the 
danger  of  a  contrary  practice.  Three  persons  were 
executed  in  the  year  1660,  for  the  murder  of  a 
person  who  had  suddenly  disappeared  {(j),  but  about 

(«)  Reo-.  V.  Hzimphreys^  pp.  198-201,  supra. 
{0)  Traite  de  la  Preuve,  par  Mittermaier,  ch.  24. 
(p)  Per  Parke,  B.,  in  Reg.  v.  Tawell,  pp.  313-317)  ifjfra. 
{q)  Rex  V.  Perry,   14  St.   Tr.   1312  ;  and  see  11   St.  Tr.  463;    see 
also  the  Scotch  case  of  Green  and  others^  14  St.  Tr.  1199,  v.here,  in 


IN    CASES    OF    HOMICIDE.  283 

two  years  afterwards  he  reappeared.  It  appeared 
that  he  had  been  out  to  collect  his  mistress's  rents, 
and  had  been  robbed  by  highwaymen,  who  put  him 
on  board  a  ship  which  was  captured  by  Turkish 
pirates,  by  whom  he  was  sold  into  slavery.  Sir 
Matthew  Hale  mentions  a  case  where  A.  was  long 
missing,  and  upon  strong  presumptions  B.  was 
supposed  to  have  murdered  him,  and  to  have  con- 
sumed the  body  to  ashes  in  an  oven,  whereupon  B. 
was  indicted  of  murder,  and  convicted,  and  executed  ; 
and  within  one  year  afterwards  A.  returned,  having 
been  sent  beyond  sea  by  B.  against  his  will  ;  "  and 
so,"  that  learned  writer  adds,  "  though  B.  jusdy 
deserved  death,  yet  he  was  really  not  guilty  of  that 
offence  for  which  he  suffered "  (r).  Lord  Coke 
also  gives  the  case  of  a  man  who  was  executed 
for  the  murder  of  his  niece,  who  was  afterwards 
found  to  be  living,  of  which  the  particulars  have 
been  given  in  a  former  part  of  this  Essay  (s).  Sir 
Matthew  Hale,  on  account  of  these  cases,  says  :  "  I 
will  never  convict  any  person  of  murder  or  man- 
slaughter, unless  the  fact  were  proved  to  be  done, 
or  at  least  the  body  found  "  (/).  The  judicial  history 
of  all  nations,  in  all  times,  abounds  with  similar 
warnings  and  exemplifications  of  the  danger  of 
neglecting  these  salutary  cautions  (u). 

1705,  the  captain  of  a  vessel  and  several  of  his  crew  were  executed  on 
a  charge  of  piracy  and  murder  ;  but  the  party  supposed  to  have  been 
murdered  reappeaied  many  years  afterwards,  having  been  taken  at 
sea  and  carried  into  captivity. 

(r)  2  Hale's  P.  C.  c.  39, 

(j)  See  p.  212,  supra. 

(/)  2  P.  C.  ch.  39. 

{u)  See  the  case  of  the  two  Booms^  1  Greenleaf's  L.  of  Ev.  §  214, 
and  p.  95,  supra. 


2 84  PROOF    OF    THE    CORrUS    DELICTI 

P)iit,  nevertheless,  to  require  the  discovery  of 
the  body  in  all  cases  would  be  unreasonable  and 
lead  to  absurdity  and  injustice,  and  it  is  indeed 
frequently  rendered  impossible  by  the  act  of  the 
offender  himself  It  is  said  that  on  the  trial  for 
murder  of  the  mother  and  reputed  father  of  a 
bastard  child,  whom  they  had  stripped  and  thrown 
into  the  dock  of  a  seaport  town,  after  which  it  was 
never  seen  again,  Mr.  Justice  Gould  advised  an 
acquittal  on  the  ground  that  as  the  tide  of  the  sea 
flowed  and  reflow^ed  into  and  out  of  the  dock 
it  might  possibly  have  carried  out  the  living- 
infant  (-r).  Mr.  Justice  Story  said  of  the  pro- 
position in  question  that  "  it  certainly  cannot  be 
admitted  as  correct  in  point  of  common  reason  or 
of  law,  unless  courts  of  justice  are  to  establish  a 
positive  rule  to  screen  persons  from  punishment  who 
may  be  guilty  of  the  most  flagitious  offences.  In 
the  cases  of  murder  committed  on  the  high  seas  the 
body  is  rarely  if  ever  found,  and  a  more  complete 
encouragement  and  protection  to  the  worst  offences 
of  this  sort  could  not  be  invented  than  a  rule  of 
this  strictness.  It  would  amount  to  a  universal 
condonation  of  all  murders  committed  on  the  high 
seas  '  {j^').  It  is  now  clearly  established  that  the 
fact  of  death  may  be  legally  inferred  from  such 
strong  and  unequivocal  circumstances  of  presump- 
tion as  render  it  morally  certain,  and  leave  no  ground 
for  reasonable  doubt  ;  as  where,  on  the  trial  of  a 
mariner  for   the   murder  of   his   captain    at    sea,    a 

(x)  Per  Garrow  arguetido  in  Rex  v.  Hiiidinarsh,  2  Leach,  C.  C.  571 
( v)   United  States  v.  Gilbert^  2  Sumner,  19,  quoied  in  Benill  on  Cir. 
Ev.  679. 


IN    CASES    OF    HOMICIDE.  2 85 

witness  stated  that  the  prisoner  had  proposed  to  kill 
him,  and  that,  being  alarmed  in  the  night  by  a  violent 
noise,  he  went  upon  deck  and  saw  the  prisoner 
throw  the  captain  overboard,  and  that  he  was  not 
seen  or  heard  of  afterwards  and  that  near  the  place 
on  the  deck  where  the  captain  was,  a  billet  of  wood 
was  found,  and  that  the  deck  and  part  of  the 
prisoner's  dress  were  stained  with  blood.  It  was 
urged  that,  as  there  were  many  vessels  near  the 
place  where  the  transaction  was  alleged  to  have 
occurred,  the  probability  was  that  the  party  had 
been  taken  up  by  some  of  them  and  was  then 
alive ;  but  the  Court,  though  it  admitted  the 
general  rule  of  law,  left  it  to  the  jury  to  say  upon 
the  evidence,  whether  the  deceased  was  not  killed 
before  the  body  was  cast  into  the  sea,  and  the  jury 
being  of  that  opinion,  the  prisoner  was  convicted 
and  executed  (r)  ;  but  it  is  not  easy  to  perceive  why 
the  natural  presumption  from  these  facts  should  have 
been  thus  restricted  to  a  presumption  that  the  party 
had  been  killed  before  he  was  thrown  overboard. 

The  rule  and  its  qualifications  are  well  exemplified 
by  the  case  of  Elizabeth  Ross,  who  was  tried  for  the 
murder  of  Caroline  Walsh.  The  deceased  had  been 
repeatedly  solicited  by  the  prisoner  to  live  with  her 
and  her  husband,  but  had  refused.  However  she 
at  last  consented,  and  went  for  that  purpose  to  the 
prisoner's  lodgings,  in  Goodman's  Fields,  in  the 
evening  of  the  19th  of  August  1831,  taking  with  her 
her  bed  and  an  old  basket,  in  which  she  was  accus- 
tomed to  carry  tape  and  other  articles  for  sale.      Not- 

(z)  Rex  V.  Hinchnarsk,  2  Leach,  C.  C.  569 


286  PROOF    OF    THE    CORPUS    DELICTI 

withstanding  all  inquiry,  from  that  evening  all  traces 
of  the  deceased  were  lost,  and  when  the  prisoner  was 
required  by  Walsh's  relatives  to  account  for  her  dis- 
appearance she  prevaricated,  but  finally  asserted  that 
she  had  gone  out  early  in  the  morning  of  the  next 
day,  and  had  not  returned.  Many  circumstances 
confirmed  their  suspicions  that  she  had  been  mur- 
dered, and  in  the  month  of  October  the  prisoner  was 
apprehended,  and  charged  with  the  murder  of  the 
old  woman.  From  the  testimony  of  the  prisoner's 
son,  a  boy  of  twelve  years  of  age,  it  appeared  that 
she  had  suffocated  the  deceased  on  the  evening  of 
her  arrival,  by  placing  her  hands  over  her  mouth, 
and  pressing  on  her  chest ;  and  he  deposed  that  the 
following  morning  he  saw  the  dead  body  in  the  cellar 
of  the  house,  and  that  in  the  evening  he  saw  his 
mother  leave  the  house  with  something  large  and 
heavy  in  a  sack.  A  medical  man  deposed  that  the 
means  described  would  be  sufficient  to  cause  death. 
It  happened  most  singularly  that,  on  the  evening  of 
the  day  following  that  of  the  alleged  murder,  an  old 
woman  was  found  lying  in  the  street  in  the  immediate 
neighbourhood,  in  a  completely  exhausted  condition, 
and  in  a  most  filthy  and  squalid  state.  On  being  ques- 
tioned she  stated  that  her  name  was  Caroline  Welsh, 
and  that  she  was  a  native  of  Ireland.  Her  hip  was 
found  to  be  fractured,  in  consequence  of  which  she 
was  conveyed  to  the  London  Hospital,  where  she 
subsequently  died.  The  prisoner  when  apprehended 
insisted  that  this  was  the  female  whom  she  was 
accused  of  having  murdered.  The  resemblance  of 
names  and  the  coincidence  of  time  were  very  re- 
markable ;  but  by  the  examination  of  numerous  wit' 


IN    CASES    OF    HOMICIDE.  287 

nesses  the  following  points  of  difference  were  estab- 
lished. They  were  both  Irishwomen  ;  but  Carohne 
Walsh  came  from  Kilkenny  ;  Caroline  Welsh  from 
Waterford.  Walsh  was  eighty-four  years  of  age, 
tall,  of  a  sallow  complexion,  grey  hair,  and  had  very 
perfect  incisor  teeth  in  both  jaws,  having  lost  only  a 
side  tooth  in  the  upper  and  lower  jaws  from  the  effect 
of  continual  smoking  with  a  tobacco-pipe.  Welsh 
(the  woman  who  died  in  the  hospital)  was  about 
sixty  years  of  age,  tall,  dark  like  a  mulatto,  but  had 
no  front  teeth,  and  the  alveolar  cavities  correspond- 
ing to  them  had  been  obliterated  for  a  considerable 
time.  Walsh  was  healthy,  cleanly,  and  neat  in  her 
person,  and  her  feet  were  perfectly  sound  ;  Welsh 
was  considerably  emaciated  ;  in  a  dirty  and  filthy 
condition  ;  her  hip  broken,  her  feet  covered  with 
bunions  and  excrescences,  and  the  toes  overlapped 
one  another.  The  two  women  were  differently 
dressed  :  Walsh  was  dressed  in  a  black  stuff  gown, 
a  broken  old  willow  bonnet,  and  a  faded  blue  shawl 
with  a  broad  border  ;  Welsh  wore  a  striped  blue 
cotton  oown,  a  dark  or  black  silk  bonnet,  and  a 
snuff-coloured  shawl  with  little  or  no  border.  Walsh's 
clothing  was  proved  to  have  been  sold  by  the 
prisoner  to  different  persons,  and  almost  every  article 
was  produced  in  court  and  identified.  The  clothes 
of  Welsh,  on  account  of  their  disgusting  condition, 
had  been  burnt  by  order  of  the  parish  authorities. 
Both  of  these  women  had  similar  baskets  :  that  of 
Walsh  had  no  lid  or  cover,  while  that  found  on 
Welsh  had.  Lastly,  the  body  of  the  latter  was  taken 
up  from  the  burial-ground  of  the  London  Hospital 
for  the  purpose  of  identification,  and  it  was  sworn 


2  88  PROOF    OF    THE    CORPUS    DELICTI 

by  two  of  the  granddaughters  of  Walsh  not  to  be 
the  body  of  their  grandmother.  The  prisoner  was 
convicted  and  executed  [a).  The  corpse  of  the  mur- 
dered woman  was  most  probably  sold  by  the  prisoner 
for  the  purpose  of  dissection  ;  and  other  murders 
were  committed  about  the  same  time  both  in  England 
and  Scotland  from  the  same  motive  (d). 

(2)  It  is  another  necessary  step  in  the  establish- 
ment of  the  corpus  delicti  in  cases  of  homicide,  that 
the  body,  when  discovered,  be  satisfactorily  identified 
as  that  of  the  person  whose  death  is  the  subject  of 
inquiry.  Mr.  Justice  Park  stopped  the  trial  of  a 
woman,  charged  with  the  murder  of  her  illegitimate 
child,  because  the  supposed  body  was  nothing  but  a 
mass  of  corruption,  so  that  there  were  no  lineaments 
of  the  human  face,  and  it  was  impossible  even  to 
distinguish  its  sex  (^).  On  the  trial  of  a  woman  for 
the  murder  of  her  brother,  a  child  eight  years  of  age, 
by  poison,  the  sexton  proved  the  interment  on  the 
29th  of  June,  and  the  exhumation  on  the  12th  of 
August  following,  of  a  body  which  he  believed  to  be 
that  of  the  deceased,  from  the  coffin-plate,  and  the 
place  from  which  he  had  exhumed  it,  but  he  had  not 
seen  the  body  in  the  coffin  at  ihe  time  of  interment, 
and  could  not  recognise  it  independently  of  those 
circumstances,  on  account  of  its  state  of  decay.  Mr. 
Baron  Maule  refused  to  receive  evidence  of  the  con- 
tents of  the  coffin-plate,  on   the  ground   that,  being- 

{a)  Rex  V.  Ross^  O.  B.  Sess.  Pap.  1831. 

\b)  See  Rex  v.  Burke,  Alison's  Principles  of  the  Criminal  Law  of 
Scotland,  p.  74  ;  Syme's  Justiciary  Rep.  345.  Rex  v.  Bishop  and 
others,  O.  B.  Sess.  Pap.  1832. 

{c)  See  his  charge  to  the  grand  jury  in  Rex  v.  Thitrtcll,  Hertford 
winter  assizes,  1824. 


IN    CASES    OF    HOMICIDE.  289 

removable,  it  ought  to  have  been  produced,  and  there 
being-  no  other  evidence  of  identity  stopped  the 
case  {({).  On  the  trial  of  a  girl  for  the  murder  of  her 
illegitimate  child,  it  appeared  that  she  was  proceed- 
ing from  Bristol  to  Llandogo,  and  was  seen  near 
Tintern  at  six  o'clock  in  the  evening,  with  the  child 
in  her  arms,  and  that  she  arrived  at  Llandogo  be- 
tween eight  and  nine  without  it,  and  that  the  body  of 
a  child  was  afterwards  found  in  the  river  Wye  near 
Tintern,  but  which  appeared  from  circumstances  not 
to  be  the  prisoner's  child  ;  Lord  Abinger  held  that 
the  prisoner  could  not  be  called  upon  to  account  for 
her  child,  or  to  say  where  it  was,  unless  there  was 
evidence  to  show  that  her  child  was  actually  dead  ; 
the  jury  v/ere  not  sitting,  he  said,  to  inquire  what  the 
prisoner  had  done  with  her  child,  which  might  be 
then  alive  and  well  [c).  In  a  similar  case,  Mr.  Baron 
Bramwell  observed  that  the  evidence  of  identity  was 
not  complete  ;  that  still,  if  the  jury  thought  there 
was  reasonable  evidence  upon  the  point,  they  might 
think  that  if  the  child  was  still  alive  the  prisoner 
would  probably  produce  it  in  a  case  where  her  life 
was  at  stake,  but  that  she  was  at  liberty  to  act  upon 
the  defect  of  proof,  and  to  say  that  the  prosecutor 
had  failed  to  prove  the  identity  (_/). 

But,  nevertheless,  it  is  not  necessary  that  the 
remains  should  be  identified  by  direct  and  positive 
evidence,    where   such    proof  is   impracticable,  and 

{d)  Reg.   V.   Edge,  p.  260,  supra  ;  and  see  Reg.  v.  Hinhy,  i  Cox, 
C.  C.  at  p.  13. 

{e)  Reg.  V.  Hopkins,  8  C.  &  P.  591. 

(/)  Reg.  V.  Rudge,  Hereford  Summer  Assizes,  1857. 

C.E.  U 


290  PROOF    OF    THE    CORPUS    DELICTI 

especially  if  it  has  been  rendered  so  by  the  act  of 
the  party  accused.  A  man  was  convicted  of  the 
murder  of  a  creditor  who  had  called  to  obtain  pay- 
ment of  a  debt,  and  whose  body  he  had  cut  into 
pieces  and  attempted  to  dispose  of  by  burning  ;  the 
effluvium  and  other  circumstances  alarmed  the 
neighbours,  and  a  portion  of  the  body  remained 
unconsumed,  sufficient  to  prove  that  it  was  that  of  a 
male  adult ;  and  various  articles  which  had  belonged 
to  the  deceased  were  found  on  the  person  of  the 
prisoner,  who  was  apprehended  putting  off  from  the 
Black  Rock  at  Liverpool,  after  having  ineffectually 
endeavoured  to  elude  justice  by  drowning  himself  {^c>). 
The  remains  of  a  man  which  had  lain  undiscovered 
upwards  of  twenty-three  years  were  identified  by 
his  widow  from  peculiarities  in  the  teeth  and  skull, 
and  from  a  carpenter's  rule  found  with  them  (k). 
The  identification  of  human  remains  has  been  facili- 
tated by  the  preservation  of  the  head  and  other 
parts  in  spirits  [i) ;  by  the  antiputrescent  action 
of  the  substances  used  to  destroy  life ;  by  the 
similarity  of  the  undigested  remains  of  food  found 
in  the  stomach,  with  the  food  which  it  has  been 
known  that  the  party  has  eaten  [k)  ;  by  means  of 
clothingf  or  other  articles  of  the  deceased  traced  to 
the  possession  of  the  prisoner,  and  unexplained  by 
any  evidence  that  he  became  innocently  possessed 

{g)  Rexv.  Cook,  Leicester  Summer  Assizes,  1834. ;  and  see  Reg.  v. 
Good,  C.  C.  C.  Sess.  Pap.,  May  1842. 

{h)  Rex  V.  Clewes,  Worcester  Spring  Assizes,  1830,  coram  Little- 
dale,  J, 

(?■)  Rex  V.  Hayes  and  others,  Paris  and  Fonblanque's  Medical 
Jurisprudence,  vol.  iii.  p.  73. 

{k)  Rex  V.  MacDougal,  Burnett's  Criminal  Law  of  Scotland,  p.  54a 


IN    CASES    OF    HOMICIDE.  29 1 

of  them  (/) ;  by  means  of  artificial  teeth  (jn),  and  by 
numerous  other  mechanical  coincidences. 

(3)  In  the  proof  of  criminal  homicide  the  true 
cause  of  death  must  be  clearly  established  ;  and  the 
possibility  of  accounting  for  the  event  by  self- 
inHicted  violence,  accident  or  natural  cause,  excluded  ; 
and  only  when  it  has  been  proved  that  no  other 
hypothesis  will  explain  all  the  conditions  of  the  case 
can  it  be  safely  and  justly  concluded  that  it  has 
been  caused  by  intentional  injury.  But,  in  accord- 
ance with  the  principles  which  govern  the  proof  of 
every  other  element  of  the  corpus  delicti,  it  is  not 
necessary  that  the  cause  of  death  should  be  verified 
by  direct  and  positive  evidence  ;  it  is  sufficient  if  it 
be  proved  by  circumstantial  evidence,  which  pro- 
duces a  moral  conviction  in  the  minds  of  the  jury, 
equivalent  to  that  which  is  the  result  of  positive  and 
direct  evidence  {11). 

Suicide,  accident,  and  natural  causes  are  frequently 
suggested  and  plausibly  urged,  as  the  causes  of 
death,  where  the  allegation  cannot  receive  direct  con- 
tradiction, and  where  the  truth  can  be  ascertained 
only  by  a  comparison  of  all  the  attendant  circum- 
stances ;  some  of  which,  if  the  defence  be  false,  are 
commonly  found  to  be  irreconcilable  with  the  cause 
alleged. 

(/)  Rex  V.  Ross,  p.  285,  supra  ;  Reg.  v.  Good,  C.  C.  C.  Sess.  Pap., 
May  1842. 

{in)  Reg.  V.  Manning  and  wife,  p.  265,  sttpra ;  and  Professof 
Webster's  case,  p.  109,  supra. 

(n)  See  the  language  of  Lord  Meadowbank  in  Reg.  v.  Humphrey s^ 
Swintons  Report,  315  ;  see  pp.  198-201,  supra. 

U  2 


292  PROOF    OF    THE    CORPUS    DELICTI 

A  m;in  named  Corder  was  charg-ed  with  the 
murder  of  a  yoLiiiL;"  woman  whom  he  had  seduced 
and  who  had  borne  him  a  child.  He  took  her  from 
her  father's  house  under  the  pretence  of  conveying 
her  to  I])swich  to  be  married.  Believing  that,  as 
he  had  told  her,  the  parish  officers  meant  to  appre- 
hend her,  she  left  her  house  on  the  iSth  of  May  in 
disguise,  a  bag  containing  her  own  clothes  having 
been  taken  by  the  prisoner  to  a  barn  belonging  to 
his  mother,  where  it  was  agreed  that  she  should 
change  her  dress.  The  deceased  was  never  heard 
of  afterwards ;  and  the  various  and  contradictory 
accounts  given  of  her  by  the  prisoner  having  excited 
suspicions,  which  were  confirmed  by  other  circum- 
stances, it  was  ultimately  determined  to  search  the 
barn  ;  where,  on  the  19th  of  April,  after  an  interval 
of  nearly  twelve  months,  the  body  of  a  female  was 
found,  which  was  clearly  identified  as  that  of  the 
deceased.  A  handkerchief  was  drawn  tightly  round 
the  neck,  and  a  wound  from  a  pistol-ball  was  traced 
through  the  left  cheek,  passing  out  at  the  right 
orbit ;  and  three  other  wounds  were  found,  all  of 
which  had  been  made  by  a  sharp  instrument,  and 
one  of  which  had  entered  the  heart.  The  prisoner, 
who  in  the  interval  had  removed  from  the  neigh- 
bourhood, upon  his  apprehension  denied  all  know- 
ledo-e  of  the  deceased  ;  but  in  his  defence  he  admitted 
the  identity  of  the  remains,  and  alleged  that  an 
altercation  took  place  between  them  at  the  barn,  in 
consequence  of  which,  and  of  the  violence  of  temper 
exhibited  by  the  deceased,  he  expressed  his  deter- 
mination not  to  marry  her,  and  left  the  barn  ;  but 
that  immediately  afterwards  he  heard  the  report  0/ 


IN    CASES    OF    HOMICIDE,  293 

a  pistol,  and  going  back  found  the  deceased  on  the 
ground  apparently  dead  ;  and  that,  alarmed  by  the 
situation  in  which  he  found  himself,  he  formed  the 
determination  of  burying  the  corpse  and  accounting 
for  her  absence  as  well  as  he  could.  But  the  variety 
of  the  means  and  instruments  employed  to  produce 
death,  some  of  them  unusual  with  females,  in  connec- 
tion with  the  contradictory  statements  made  by  the 
prisoner  to  account  for  the  absence  of  the  deceased, 
entirely  discredited  the  account  set  up  by  him,  and 
he  was  convicted.  He  afterwards  made  a  full 
confession,  and  v/as  executed  pursuant  to  his  sen- 
tence {0). 

In  1884  a  woman  was  tried  before  Mr.  Justice 
Hawkins  for  the  murder  of  her  husband  by  shoot- 
ing him.  The  defence  was  suicide.  The  medical 
evidence  showed  that  death  was  caused  by  four 
bullet  wounds  from  a  revolver  ;  that,  although  any 
one  of  them  might  have  been  self-inflicted,  it  was 
highly  improbable  that  all  four  were  ;  and  that,  in 
order  to  cause  one  of  the  wounds  upon  himself,  the 
deceased  man  must  have  held  the  revolver  in  his 
left  hand.  It  was  also  proved  that  he  was  right- 
handed.       The  prisoner  was  convicted  (/>). 

But  these  heads  of  evidence  belono-  rather  to 
the  department  of  medical  jurisprudence.  Such 
auxiliary  evidence  is  frequently  of  the  highest  value 
in  demonstrating  the  falsehood  and  impossibility  of 
the  alleged  defence  ;    but,  when  uncorroborated  by 

(0)  Hex  V.  Corder,  Bury  St.  Edmund's  Summ.  Assizes,  1828. 

(/>)  Rex\.  Gibbons,  C.  C.  C.  Sess.  Pap.,  December  18  &  19,  1884. 


294  PROOF    OF    THE    CORPUS    DELICTI 

conclusive  moral  circumstances,  it  must  be  received 
with  a  certain  amount  of  circumspection  and  reserve, 
of  the  necessity  for  which  some  striking  illustrations 
have  occurred  in  other  parts  of  this  essay  (q).  These 
preliminary  considerations  naturally  lead  to  the 
application  of  them  to  the  proof  of  the  corpus  delicti 
in  some  special  cases  of  great  importance  and 
interest. 


Section  4. 

application  of  the  general  principle  to  the 

proof  of  the  corpus  delicti  in  cases  of 

poisoning. 

There  are  two  classes  of  cases  of  criminal  homicide, 
in  which  the  cause  of  death  can  rarely  be  proved 
by  direct  evidence,  and  in  which  the  proof  of  it  by 
circumstantial  evidence  is  attended  with  peculiar 
difficulties  :  those,  namely,  of  poisoning  and  infanti- 
cide. An  examination  of  the  principles  on  which 
courts  of  law  proceed  in  the  investigation  of  such 
cases  will  afford  an  instructive  commentary  upon 
the  foregoing  principles  of  evidence  and  procedure. 

I.  Among  the  most  important  grounds  upon 
which  the  proof  of  criminal  poisoning  commonly 
rests  are,  the  symptoms  during  life,  Siiid  post-mortem 
appearances  ;  but  these  subjects  belong  to  another 
department  of  science,  and  have  only  an  incidental 
connection  with  the  subject  of  this  treatise.  As  is 
the  case  with  regard  to  all  other  questions  of  science, 

{g)  See  particularly,  Rex  v.  Booth,  pp.  146-148,  supra  ;  and  Reg.  v 
Newton,  pp.  148-154,  supra. 


IN    CASES    OF    POISONING.  295 

courts  of  justice  must  derive  their  knowledge  from 
the  testimony  of  persons  who  have  made  them  the 
objects  of  their  special  study,  applying  to  the  data 
thus  obtained  those  principles  of  interpretation  and 
judgment  which  constitute  the  tests  of  truth  in  all 
other  cases. 

It  is  obviously  essential  that  the  particular  sym- 
ptoms and  post-niorti  in  appearances  should  be  shown 
to  be  not  incompatible  with  the  hypothesis  of  death 
from  poison.  In  general  such  appearances  are  in- 
conclusive, since,  though  they  are  commonly  charac- 
teristic of  death  from  poison,  they  not  unfrequently 
resemble  the  appearance  of  disease,  and  may  have 
been  produced  by  some  natural  cause.  Neverthe- 
less, as  to  some  particular  poisons,  the  symptoms 
may  be  so  characteristic  as  to  afford  unmistakable 
evidence  of  poisoning,  and  preclude  all  possibility 
of  referring  the  event  of  death  to  any  other  cause. 
Thus  in  Palmer's  case  (r),  it  was  conclusively  shown 
by  numerous  witnesses  of  the  greatest  professional 
experience,  that  the  symptoms  in  the  course  of  their 
progress  w^ere  clearly  distinguishable  from  those  of 
tetanus  or  any  other  known  form  of  disease,  and 
were  not  only  consistent  with,  but  specially  charac- 
teristic of,  poisoning  by  strychnine. 

It  is  a  very  important  circumstance  In  corrobora 
tion  of  the   reality  of  alleged  poisoning,  if  several 
persons  are  simultaneously  affected  with  symptoms 
indicative  of  poisoning,  after  partaking  of  the  same 
food,  as  when  four  members  of  a  family  were  taken 

(r)  See  pp.  344-35  ii  inf^<*- 


296  PROOF    OF    THE    CORPUS    DELICTI 

ill  after  having  eaten  of  yeast  dumplings  made  by 
the  prisoner,  who  was  the  cook,  while  those  members 
who  had  not  partaken  of  them  were  not  affected  (s). 

The  probability  in  such  cases  is  greatly  strength- 
ened if  the  violence  of  the  symptoms  has  been  in 
proportion  to  the  quantities  of  the  suspected  food 
taken  by  the  parties  (/) ;  and,  on  the  other  hand,  a 
favourable  presumption  is  created,  if  only  one  mem- 
ber of  a  family  is  taken  ill  after  partaking  of  food  of 
which  other  members  have  eaten  with  impunity  (?/). 
From  the  nature  of  the  case,  these  elements  of 
proof  never  occur  alone  ;  but  are  necessarily  blended 
with  facts  of  a  more  conclusive  character. 

2.  The  possession  of  poisonous  matter  by  the 
person  charged  with  the  administration  of  it,  is  always 
an  important  fact,  and  when  death  has  been  caused 
by  poist)n  of  the  same  kind,  and  no  satisfactory  ex- 
planation of  that  fact  is  given  by  the  accused  or 
suggested  by  the  surrounding  circumstances,  a  strong 
inference  of  guilt  may  be  created  against  the  ac- 
cused ;  especially  if  he  has  attempted  to  account  for 
such  possession  by   false   statements.      In   Palmer's 

(s)  Rex  V.  Fc7i7ii7ig,  coram  the  Recorder  of  London,  O.  B.  Sess. 
Pap.,  18 1 5.  Cf.  p.  218,  sttpra.  The  evidence  against  this  young 
girl  was  most  unsatisfactory,  and  she  was  long  thought  to  have  been 
unjustly  convicted  (3  Mem.  of  Romilly,  235  ;  Suggestions  for  the 
Repression  of  Crime,  by  M.  D.  Hill,  31)  ;  but  it  has  been  stated  on 
good  authority  that  she  made  a  confession  to  a  minister  of  religion, 
who  had  her  confidence  (see  "The  Times"  of  Aug.  5,  1857).  It  is 
unaccountable  that  the  statement  should  have  been  withheld,  and  the 
public  suffered  to  remain  for  nearly  half  a  century  under  the  belief 
that  she  was  wrongfully  executed. 

(/)  Rexv.  Alcorn,  Syme's  Justiciary  Rep.  221. 

(«)  Rex  v.  Bickle,  Exeter  Summ.  Ass.  1834,  coram  Patteson,  J, 


IN    CASES    OF    POISONING.  297 

case,  the  Lord  Chief  Justice  Lord  Campbell  said  that 
if  the  jury  should  come  to  the  conclusion  that  the 
symptoms  which  the  deceased  had  exhibited  were 
consistent  with  strychnia,  a  fearful  case  was  made 
out  against  the  prisoner.  "  I  have  listened,"  said  the 
learned  judge,  "  with  the  most  anxious  attention  to 
know  what  explanation  would  be  given  respecting 
the  strychnia  that  has  been  purchased  by  the 
prisoner.  There  is  no  evidence  of  the  intention 
with  which  it  was  purchased,  there  is  no  evidence 
how  it  was  applied,  what  became  of  it,  or  what  was 
done  with  it "  (,v). 

3.  Not  only  must  it  appear  that  the  accused 
possessed  the  deadly  agent,  but  it  is  indispensable 
to  show  that  he  had  the  opportunity  of  administering 
it.  Upon  the  effect  of  these  heads  of  evidence,  and 
upon  the  caution  with  which  they  ought  to  be 
received,  some  valuable  observations  were  made  by 
Mr.  Baron  Rolfe  in  a  case  before  him.  The 
prisoner  was  indicted  for  the  murder  of  his  wife, 
who  was  taken  ill  on  the  morning  of  the  25th  of 
November,  and  died  two  days  afterwards  with 
symptoms  resembling  those  of  an  irritant  poison. 
Poisoning  not  having  been  suspected,  the  body  was 
interred  without  examination  ;  but  suspicions  having 
afterwards  arisen,  it  was  exhumed  in  the  month  of 
June  following,  and  a  large  quantity  of  arsenic  was 
discovered  in  the  stomach.  Several  weeks  after 
the  apprehension  of  the  prisoner,  the  police  took 
possession  of  some  of  his  garments,  which  were 
found  hanging  up  in  his  lodgings,  in  the  pockets  of 

{x)  See  pp.  344-35 1  >  "J/'^^- 


298  PROOF    OF    THE    CORPUS    DELICTI 

which  arsenic  was  found.  In  his  address  to  the 
jury,  Mr.  Baron  Rolfe  said,  "  H;k1  the  prisoner  the 
opportunity  of  administering  poison  ? — that  is  one 
thing.  Had  he  any  motive  to  do  so  ? — that  is 
another.  There  is  also  another  question,  which  is 
most  important ;  it  is  whether  the  person  who  had 
the  opportunity  of  administering  poison  had  poison 
to  administer?  If  he  had  not  the  poison,  the  having 
the  opportunity  becomes  unimportant.  If  he  had 
the  poison,  then  another  question  arises — did  he 
get  it  under  circumstances  such  as  to  show  that  it 
was  for  a  guilty  or  improper  object  ?  The  evidence 
by  which  it  is  attempted  to  trace  poison  to  the 
possession  of  the  prisoner  is,  that  on  a  certain  occa- 
sion, after  the  death  of  his  wife,  and  after  he  him- 
self was  apprehended,  the  contents  of  the  pockets 
of  a  coat,  waistcoat,  and  trousers,  on  being  tested 
by  the  medical  witnesses,  were  found  to  contain 
arsenic  ;  and  that,  a  week  afterwards,  another  waist- 
coat which  came  into  the  possession  of  the  police- 
man, on  being  examined,  was  also  found  to  contain 
arsenic.  Does  that  bring  home  to  the  prisoner  the 
fact  that  he  had  arsenic  in  his  possession  in  Novem- 
ber ?  It  is  not  conclusive  that,  because  he  had  it 
in  June,  he  had  it  in  November.  I  infer  from  what 
has  been  stated  by  the  medical  men,  that  the 
quantity  of  arsenic  found  in  the  pockets  of  the 
clothes  was  very  small.  Now,  if  he  had  it  in  a 
larger  quantity  in  November,  and  it  had  been 
used  for  some  purpose,  being  a  mineral  substance, 
such  particles  were  likely  to  remain  in  the  pockets, 
and  finding  it  there  in  June  is  certainly  evi- 
dence   that    it   might    have    been    there   in   larger 


IN    CASES    OF    POISONING.  299 

quantity  in  November  ;  but,  obviously,  by  no  means 
conclusive,  as  it  mi^ht  have  been  put  in  afterwards. 
But,  conn(;cted  with  the  arsenic  bein<(  found  in  the 
clothes,    there    are   other  considerations   which  are 
worthy  to  be  attended  to.      The  prisoner  was  appre- 
hended on  the  9th  of  June,  and  he  knew  long  before 
that  time  that  an  inquiry   was  goins^'   on.       He  was 
taken  up,  not  in    the  clothes   in   which  the   arsenic 
was  found  ;    and  a  fortnight  afterwards  a  batch  of 
clothes  was  given  up  in  which  arsenic  was  detected. 
Now,   if  arsenic  had   been  found  in  the  clothes   he 
was  wearing,    it  would   be  perfectly  certain,   in   the 
ordinary  sense,  that  he  had  arsenic  in  his  possession. 
But  it   is  going  a  step  further   to  say  that  because 
arsenic  is  discovered  in  clothes  of  his,  accessible  to 
so  many  people   between    the    time   of   his    appre- 
hension and  their  being  given  up,  it  was  there  when 
he  was  apprehended  ;  in  all  probability  it  was,  but 
that  is   by   no    means    the    necessary    consequence. 
This   observation   is  entitled   to   still   more   weight, 
with  regard  to  the  waistcoat   last  given  up  to  the 
police,  because  it  was  not  given  up  till  three  weeks 
after  the  prisoner  was  apprehended,  and   had   been 
hanging  in    the    kitchen,  accessible   to  a  variety  of 
persons.    .       .    It   is   urged  also  that  arsenic  is  used 
for  cattle.      It  may  be  so,   and   it   may  be  that  the 
prisoner    may    innocently   have   had   arsenic.      The 
circumstance    of   there    being    arsenic    in    so  many 
pockets  ought  not    to    be    lost   sight  of,  for  it  can 
scarcely  be    conceived  that  a  guilty  person  should 
be  so  utterly  reckless  as  to  put  the  poison   he  used 
into  every  pocket  he  had.      One  would  have  thought 
that  he  would  have  kept  it  concealed,  or  put  it  only 


300  PROOF    OF    THE    CORPUS    DELICTI 

in  some  safe  place  for  the  immediate  purpose  of 
being  used  ;  and  it  is  worthy  of  observation  that  it 
does  not  appear  to  have  been  put  into  the  clothes 
in  such  a  way  as  it  would  have  been  put  had  the 
prisoner  been  desirous  to  conceal  it."  The  prisoner 
was  acquitted  (j'). 

In  a  later  case  of  the  deepest  interest,  before  the 
High  Court  of  Justiciary  at  Edinburgh,  a  question 
whether  or  not  the  prisoner  had  the  opportunity 
of  administerino"  arsenic  to  the  deceased  was  the 
turning-point  of  the  case.  The  prisoner,  a  young 
girl  of  nineteen,  was  tried  upon  an  indictment 
chareingf  her,  in  accordance  with  the  law  of  Scot- 
land,  with  the  administration  to  the  same  person  of 
arsenic,  with  intent  to  murder,  on  two  several 
occasions  in  the  month  of  February,  and  with  his 
murder  by  the  same  means  on  the  22nd  of  March 
following.  She  had  returned  home  from  a  boarding 
school  in  1853,  and  in  the  following  year  formed  a 
clandestine  connection  with  a  foreigner  of  inferior 
position,  named  L'Angelier,  whose  addresses  had 
been  forbidden  by  her  parents.  Early  in  1856 
their  intercourse  assumed  an  unlawful  character, 
as  was  shown  by  her  letters.  In  the  month  of 
December  following,  another  suitor  appeared,  whose 
addresses  were  accepted  by  her  with  the  consent  of 
her  parents,  and  arrangements  were  made  for  their 
marriage  in  June.  During  the  earlier  part  of  this 
engagement,  the  prisoner  kept  up  her  interviews 
and  correspondence  with  L'Angelier ;  but  the 
correspondence  gradually    became    cooler,  and  she 

(y)  Jieg:  V.  Graham^  Carlisle  Summer  Assizes,  1845. 


IN    CASES    OF    POISONING.  3OI 

expressed  to  him  her  determination  to  break  off 
the  connection,  and  implored  him  to  return  her 
letters  ;  but  this  he  refused  to  do,  and  declared  that 
she  should  marry  no  other  j>erson  while  he  lived. 
After  the  failure  of  her  efforts  to  obtain  the  return 
of  her  letters,  she  resumed  in  her  correspondence 
her  former  tone  of  passionate  affection,  assuring 
him  that  she  would  marry  him  and  no  one  else,  and 
denying  that  there  was  any  truth  in  the  rumours  of 
her  connection  with  another.  She  appointed  a 
meeting  on  the  night  of  the  19th  of  February,  at 
her  father's  house,  where  she  was  in  the  habit  of 
receiving  his  visits,  after  the  family  had  retired  to 
rest,  telling  him  that  she  wished  to  have  back  her 
"cool  letters,"  apparently  with  the  intention  of 
inducinof  him  to  believe  that  she  remained  constant 
in  her  attachment  to  him.  In  the  middle  of  the 
night  after  that  interview,  at  which  he  had  taken 
coffee  prepared  by  the  prisoner,  L'Angelier  was 
seized  with  alarming  illness,  the  symptoms  of  which 
were  similar  to  those  of  poisoning  by  arsenic.  There 
was  no  evidence  that  the  prisoner  possessed  arsenic 
at  that  time,  but  on  the  21st  she  purchased  a  large 
quantity,  professedly  for  the  purpose  of  poisoning 
rats,  an  excuse  for  which  there  was  no  pretence. 
On  the  nicrht  of  the  22nd,  L'x'\nQ:elier  aQfain  visited 
the  prisoner,  and  about  eleven  o'clock  on  the  follow- 
ing day  was  seized  with  the  same  alarming  symptoms 
as  before  ;  and  on  this  occasion  also  he  had  taken 
cocoa  from  the  hands  of  the  prisoner.  After  this 
attack  L'Angelier  continued  extremely  ill,  and  wasad- 
vised  to  go  from  home  for  the  recovery  of  his  health. 
On  the  6th  of  March  the  prisoner  a  second  time 


302       PROOF  OF  THE  CORPUS  DELICTI 

bought  arsenic  ;  and  on  the  same  day  she  went  with 
her  family  to  the  Bridge  of  Allan  (where  she  was 
visited  by  her  accepted  lover),  and  remained  till  the 
17th,  when  they  returned  to  Glasgow.  On  the  day 
before  her  departure  for  the  Bridge  of  Allan 
L'Angelier  wrote  a  letter  to  her,  in  which  he  re- 
proached her  for  the  manner  in  which  she  had  evaded 
answering  the  questions  which  he  had  put  to  her  in 
a  former  letter  respecting  her  rumoured  engagement 
with  another  person,  expressed  his  conviction  that 
there  was  foundation  for  the  report,  and  after 
repeating  his  inquiries  threatened,  if  she  again 
evaded  them,  to  try  some  other  means  of  coming  at 
the  truth.  To  this  letter,  the  prisoner  replied  from 
the  Bridge  of  Allan,  that  there  was  no  foundation 
for  the  report,  and  that  she  would  answer  all  his 
questions  when  they  met,  and  informed  him  of  her 
expected  return  to  Glasgow  on  the  17th  of  March. 
L'Angelier,  pursuant  to  medical  advice,  on  the  loth 
of  March  went  to  Edinburgh,  leaving  directions  for 
the  transmission  of  his  letters,  and  having  become 
much  better,  left  that  place  on  the  19th  for  the 
Bridge  of  Allan.  During  this  interval,  namely,  on 
the  17th,  he  returned  to  his  lodgings  at  Glasgow, 
and  inquired  anxiously  jf  his  landlady  if  there  was  no 
letter  waiting  for  him,  as  the  prisoner's  family  were 
to  be  at  home  on  that  day,  and  she  was  fo  write  to 
fix  another  interview.  He  left  Glasgow  again  on 
Thursday  the  19th  for  the  Bridge  of  Allan,  leaving 
directions  as  before  for  the  transmission  to  him  of  any 
letter  which  might  come  for  him  during  his  absence. 
On  the  18th  of  March,  the  prisoner  a  third  time 
purchased    a   large    quantity    of    arsenic,    alleging, 


IN    CASES    OF    POISONING.  303 

as  before,  that  It  was  for  the  purpose  of  killing- 
rats.  A  letter  from  the  prisoner  to  L'Angelier  came 
to  his  lodgings  on  Saturday  the  21st,  from  the  date 
and  contents  of  which  it  appeared  that  she  had 
written  a  letter  appointing  to  see  him  on  the  19th  ; 
he  had  not,  however,  received  it  in  time  to  enable 
him  to  keep  her  appointment.  In  that  letter  she 
urged  him  to  come  to  see  her,  and  added,  "  I  waited 
and  waited  for  you,  but  you  came  not.  I  shall  wait 
again  to-morrow  night,  same  time  and  arrange- 
ment." This  letter  was  immediately  transmitted  to 
L'Angelier,  and  in  consequence  he  returned  to  his 
lodgings  at  Glasgow  about  eight  o'clock  on  the 
evening  of  Sunday  the  22nd,  in  high  spirits  and 
improved  health,  having  travelled  a  considerable 
distance  by  railway,  and  walked  fifteen  miles.  He 
left  his  lodo-incrs  about  nine  o'clock,  and  was  seen 
going  leisurely  in  the  direction  of  the  prisoner's 
house,  and  about  twenty  minutes  past  nine  he  called 
at  the  house  of  an  acquaintance  who  lived  about 
four  or  five  minutes'  walk  from  the  prisoner's  resi- 
dence. After  leaving  his  friend's  house,  all  trace  of 
him  was  lost,  until  two  o'clock  in  the  morning,  when 
he  was  found  at  the  door  of  his  lodgings,  unable  to 
open  the  latch,  doubled  up  and  speechless  from 
pain  and  exhaustion,  and  about  eleven  o'clock  the 
same  morning  he  died,  from  the  effects  of  arsenic,  of 
which  an  enormDus  quantity  was  found  in  his  body. 

The  prisoner  stated  in  her  declaration  that  she 
had  been  in  the  habit  of  using  arsenic  as  a  cosmetic, 
and  denied  that  she  had  seen  the  deceased  on 
that  eventful  niorht ;  whether  she  had  done  so  or 
not  was  the  all-momentous  question.     As  there  was 


304  PROOF    OF    THE    CORPUS    DELICTI 

no  evicU^nce  that  the  prisoner  possessed  poison  at 
the  time  of  the  first  ilhiess,  nor  any  analysis  made 
of  the  matter  ejected  on  either  the  first  or  second 
illness,  the  learned  Lord  Justice  Clerk  said  that 
there  was  no  proof  of  the  administration  of  poison 
on  either  of  those  occasions  ;  that  the  first  charge 
therefore  had  entirely  failed,  and  that  it  was  safer 
not  to  hold  that  the  second  illness  was  caused  by 
poison. 

As  to  the  principal  charge  of  murder,  his  Lord- 
ship said,  "  Supposing  you  are  quite  satisfied  that 
the  prisoner's  letter  brought  L'Angelier  again 
into  Glasgow,  are  you  in  a  situation  to  say,  with 
satisfaction  to  your  consciences,  as  an  inevitable  and 
just  result  from  this,  that  the  prisoner  and  deceased 
met  that  night? — that  is  the  point  in  the  case.  It 
is  for  you  to  say  whether  it  has  been  proved  that 
L'Angelier  was  in  the  house  that  night.  Can  you 
hold  that  that  link  in  the  chain  is  supplied  by  just 
and  satisfactory  inference — remember  that  I  say 
just  and  satisfactory — and  it  is  for  you  to  say 
whether  the  inference  is  satisfactory  and  just,  in 
order  to  complete  the  proof  .f*  If  you  really  feel  that 
you  may  have  the  strongest  suspicion  that  he  saw 
her — and  no  one  need  hesitate  to  say  that,  as  a 
matter  of  moral  opinion,  the  whole  probabilities  of 
the  case  are  in  favour  of  it — but  if  that  is  all  the 
amount  that  you  can  derive  from  the  evidence,  the 
link  still  remains  wanting  in  the  chain,  the  cata- 
strophe and  the  alleged  cause  of  it  are  not  found 
linked  together.  And  therefore  you  must  be  satis- 
fied that  you  can  here  stand  and  rely  upon  the  firm 
foundation,  I  say,  of  a  just  and  sound,  and  perhaps 


IN    CASES    OF    rOISONING.  305 

I  may  add,  inevitable  inference.  That  a  jury  is 
entitled  often  to  draw  such  an  inference  there  is  no 
doubt.  .  .  If  you  find  this  to  be  a  satisfactory  and 
just  inference,  1  cannot  tell  you  that  you  are  not  at 
liberty  to  act  upon  it,  because  most  of  the  matters 
occurring  in  life  must  depend  upon  circumstantial 
evidence,  and  upon  the  inferences  which  a  jury  may 
feel  bound  to  draw.  But  it  is  an  inference  of  a 
very  serious  character — it  is  an  inference  upon 
which  the  death  of  this  party  by  the  hand  of  the 
prisoner  really  must  depend.  And  then,  you  will 
take  all  the  other  circumstances  of  the  case  into 
your  consideration,  and  see  whether  you  can  infer 
from  them  that  they  met.  If  you  think  they  met 
together  that  night,  and  he  was  seized  and  taken  ill, 
and  died  of  arsenic,  the  symptoms  beginning  shortly 
after  the  time  he  left  her,  it  will  be  for  you  to  say 
whether  in  that  case  there  is  any  doubt  as  to  whose 
hand  administered  the  ooison." 

In  another  part  of  his  charge  the  learned  Judge 
said  : — "  In  the  ordinary  matters  of  life,  when  you  find 
the  man  came  to  town  for  the  purpose  of  getting  a 
meeting,  you  may  come  to  the  conclusion  that  the 
meeting  did  take  place  ;  but,  observe,  that  becomes  a 
very  serious  inference  indeed  to  draw  in  a  case  where 
you  are  led  to  suppose  that  there  was  an  adminis- 
tration of  poison,  and  death  resulting  therefrom.  It 
may  be  a  very  natural  inference,  looking  at  the 
thing  morally.  None  of  you  can  doubt  that  she 
waited  for  him  again  ;  and  if  she  waited  the  second 
night,  after  her  first  letter,  it  was  not  surprising  that 
she  should  look  out  for  an  interview  on  the  second 
night,    after    the    second  letter.  ,  .  •  She  says,    '  I 

C.E.  X 


306       PROOF  OF  THE  CORPUS  DELICTI 

shall  wait  ayaiii  to-morrow  ni^ht,  same  hour  and 
arrangement.'  And  I  say  there  is  no  doubt — but  it 
is  a  matter  for  you  to  consider — that  after  writing 
this  letter  he  might  expect  she  would  wait  another 
night,  and  therefore  it  was  very  natural  that  he 
should  oo  to  see  her  that  Sunday  nio^ht. 

"  But  this  is  an  inference  only.  If  you  think  it 
such  a  just  and  satisfactory  inference  that  you  can 
rest  your  verdict  upon  i.t,  it  is  quite  competent  for 
you  to  draw  such  an  inference  from  such  letters  as 
these,  and  from  the  conduct  of  the  man  coming  to 
Glasgow  for  the  purpose  of  seeing  her — for  it  is 
plain  that  that  was  his  object  in  coming  to  Glasgow. 
It  is  sufficiently  proved  that  he  went  out  im- 
mediately after  he  got  some  tea  and  toast,  and  had 
changed  his  coat.  But  then,  in  drawing  an  in- 
ference, you  must  always  look  to  the  important 
character  of  the  inference  which  you  are  asked  to 
draw.  If  this  had  been  an  appointment  about 
business,  and  you  found  that  a  man  came  to  Glas- 
gow for  the  purpose  of  seeing  another  upon  business, 
and  that  he  went  out  for  that  purpose,  having  no 
other  object  in  coming  to  Glasgow,  you  would 
probably  scout  the  notion  of  the  person  whom  he 
had  gone  to  meet  saying,  '  I  never  saw  or  heard  of 
him  that  day '  ;  but  here  you  are  asked  to  draw  the 
inference  that  they  met  upon  that  night,  where  the 
fact  of  their  meeting  is  the  foundation  of  a  charge  of 
murder.  You  must  feel,  therefore,  that  the  drawing 
of  an  inference  in  the  ordinary  matters  of  civil  busi- 
ness, or  in  the  actual  intercourse  of  mutual  friends, 
is  one  thing,  and  the  inference  from  the  fact  that  he 
came  to  Glasgow,    that    they  did    meet,    and    that, 


IN    CASES    OF    POISONING.  307 

therefore,  the  poison  was  administered  to  him  by 
her  at  that  time,  is  another,  and  a  most  enormous 
juiiij)  in  the  category  of  inferences.  Now,  the  ques- 
tion for  you  to  put  to  yourselves  is  this — Can  you 
now,  with  satisfaction  to  your  own  minds,  come  to 
the  conclusion  that  they  did  meet  on  that  occasion, 
the  result  being,  and  the  object  of  coming  to  that 
conclusion  being,  to  fix  upon  her  the  administration 
of  the  arsenic  by  which  he  died  ? 

"  She  has  arsenic  before  the  22nd  ;  and  that  is  a 
dreadful  fact,  if  you  are  quite  satisfied  that  she  did 
not  get  it  and  use  it  for  the  purpose  of  washing  her 
hands  and  face.  It  may  create  the  greatest  reluc- 
tance in  your  minds  to  take  any  other  view  of  the 
matter,  than  that  she  was  guilty  of  administering  it 
somehow,  though  the  place  where  may  not  be  made 
out,  or  the  precise  time  of  the  interview.  But,  on 
the  other  hand,  you  must  keep  in  view  that  arsenic 
could  only  be  administered  by  her  if  an  interview 
took  place  with  L'Angelier  ;  and,  though  you  may 
be  satisfied  morally  that  it  did  take  place,  the  fact 
still  rests  upon  an  inference  alone ;  and  that  in- 
ference is  to  be  the  ground,  and  must  be  the  ground, 
on  which  a  verdict  of  guilty  is  to  rest.  You  will  see, 
therefore,  the  necessity  of  great  caution  and  jealousy 
in  dealing  with  any  inference  which  you  may  draw 
from  these  facts.  You  may  be  perfectly  satisfied 
that  L'Angelier  did  not  commit  suicide  ;  and  of 
course  it  is  necessary  for  you  to  be  satisfied  of  that 
before  you  could  find  that  anybody  administered 
arsenic  to  him.  Probably  none  of  you  will  think 
for  a  moment  that  he  went  out  that  night  and  that, 
without  seeing  her,  and  without  knowing  what  she 

X  2 


308       PROOF  OF  THE  CORPUS  DELICTI 

wanted  to  see  him  about,  he  swallowed  above  200 
grains  of  arsenic  in  the  street,  and  that  he  was 
carrying  it  about  with  him.  Probably  you  will 
discard  such  an  idea  altogether,  .  .  .  yet,  on  the 
other  hand,  keep  in  view  that  that  will  not  of  itself 
establish  that  the  prisoner  administered  the  poison. 
The  matter  may  remain  most  mysterious — wholly 
unexplained  ;  you  may  not  be  able  to  account  for  it 
on  any  other  supposition  ;  but  still  that  supposition 
or  inference  may  not  be  a  ground  on  which  you  can 
safely  and  satisfactorily  rest  your  verdict  against  the 
panel. 

"  Now  then,  gentlemen,  I  leave  you  to  consider 
the  case  with  reference  to  the  views  that  are 
raised  upon  this  correspondence.  I  don't  think  you 
will  consider  it  so  unlikely  as  was  supposed,  that 
this  girl,  after  writing  such  letters,  may  have  been 
capable  of  cherishing  such  a  purpose.  But  still, 
although  you  may  take  such  a  view  of  her  character, 
it  is  but  a  supposition  that  she  cherished  this 
murderous  purpose — the  last  conclusion  of  course 
that  you  ought  to  come  to  merely  on  supposition 
and  inference  and  observation,  upon  this  varying 
and  wavering  correspondence,  of  a  girl  in  the 
circumstances  in  which  she  was  placed.  It  receives 
more  importance,  no  doubt,  when  you  find  the  pur- 
chase of  arsenic  just  before  she  expected,  or  just  at 
the  time  she  expected,  L'Angelier.  But  still  these 
are  but  supposirions  ;  they  are  but  suspicions.  . 
I  don't  say  that  inferences  may  not  competently 
be  drawn  ;  bijt  I  have  already  warned  you  as  to 
inferences  which  may  be  drawn  in  the  ordinary 
matters  of  civil  life,  and  those  which  may  be  drawn 


IN    CASES    OF    POISONING.  309 

in  such  a  case  as  this  ;  and  therefore  if  you  cannot 
say,  We  find  here  satisfactory  evidence  of  this 
meeting,  and  that  the  poison  must  have  been  ad- 
ministered by  her  at  a  meeting — whatever  may  be 
your  suspicion,  however  heavy  the  weight  and  load 
of  suspicion  is  against  her,  and  however  you  may 
have  to  struggle  to  get  rid  of  it,  you  perform  the 
best  and  bounden  duty  as  a  jury  to  separate  sus- 
picion from  truth,  and  to  proceed  upon  nothing  that 
you  do  not  find  established  in  evidence  against  her." 
The  jury  returned,  in  conformity  with  the  law  of 
Scotland,  a  verdict  of  not  guilty  on  the  first,  and 
of  not  proven  on  the  second  and  third  charges  (-s'). 
On  the  supposition  that  the  parties  met  on  the  fatal 
evening  in  question,  there  could  be  but  one  con- 
clusion as  to  the  guilt  of  the  prisoner,  the  hypothesis 
of  suicide  being  considered  by  the  learned  Judge  as 
out  of  the  question,  as  it  obviously  was  ;  and  in  the 
language  of  the  learned  Judge,  "that  this  man, 
ardent  to  see  this  girl  again,  hoping  to  get  the 
satisfactory  answer  which  she  had  promised  to  give 
him  respecting  her  runioured  engagement  with 
another,  should  hurry  home  on  the  Sunday  night, 
and  go  out  from  his  lodgings  in  the  hope  that  he 
could  find  her  waiting,  and  that  there  was  the 
greatest  probability  of  his  seeing  her,  was,  he 
thought,  the  only  conclusion  the  jury  could  come 
to  in  the  matter."  Without  presumption,  it  may 
be  observed  that  the  distinction  thus  drawn  between 
"a  very  natural  inference,  looking  at  the  thing 
morally,"   "an    inference    that    may   satisfy   a  jury 

{z)  Reg.  V.  Madeleine  Smith,  June,  1857  ;  Reports  of  A.  F.  Irvine, 
Advocate,  and  John  Morrison,  Advocate. 


3IO  -PROOF    OF    THE    CORPUS    DELICTI 

morally,"  so  that  "  no  one  need  hesitate  to  say  as  a 
matter  of  moral  opinion,  the  whole  [)robabilities  of 
the  case  are  in  favour  of  it,"  and  "as  the  only  con- 
clusion the  jury  could  come  to,"  and  that  moral 
certainty  which  Is  the  only  foundation  of  our  confi- 
dence in  the  sufficiency  and  safety  of  conclusions 
based  upon  circumstantial  evidence,  and  which  in 
every  case  can  be  but  Inferential,  Is  fine  and  shadowy 
in  the  extreme.  Nor  is  it  easy  to  reconcile  with 
sound  principle,  as  recognised  in  other  cases, 
English  and  Scotch,  any  distinction  in  the  applica- 
tion of  the  rules  of  evidence  and  Inference  according 
as  the  subject-matter  relates  to  the  ordinary  or  the 
uncommon  events  of  life  (a).  And  even  upon  that 
supposition,  surely  no  matter  or  occasion  of  ordinary 
business  could  have  been  more  important  to  her, 
or  have  more  deeply  interested  the  parties,  or  be 
more  likely  to  bring  two  young  persons  so  mutually 
implicated  together,  than  the  object  of  the  anxiously 
looked-for  meeting  appointed  for  the  night  in 
question.  It  seems,  indeed,  difficult  to  conceive  a 
more  unsatisfactory  treatment  of  the  case  from  any 
logical  or  philosophical  point  of  view. 

4.  The  science  of  chemistry  generally  affords 
most  important  auxiliary  evidence  as  to  the  corpus 
delicti  in  the  investigation  of  cases  of  imputed 
poisoning.  As  with  regard  to  scientific  evidence 
of  every  other  kind,  the  processes  and  results  of 
chemical  analysis  in  application  to  the  discovery  or 
reproduction  of  poison  are  subordinated  to  the 
control  of  those  general  principles  of  law  w^hlch,  in 

(a)  See  Rex  v.  Ings^  and  Reg.  v.  Hanson  and  others,  p.  270,  supra. 


IN    CASES    OF    POISONING.  3 II 

all  other  cases,  (govern  the  admissibility  of  evidence, 
and  the  estimation  of  its  weight  and  effect  :  indeed, 
those  rules  have  received  some  of  their  most  in- 
structive illustrations  from  cases  of  this  nature. 

Of  the  various  chemical  tests,  unquestionably 
those  which,  applied  to  the  human  body  or  its  con- 
tents or  excreta,  reproduce  the  particular  poison 
which  has  been  employed,  are  the  most  satisfactory, 
since,  if  the  re-agents  employed  are  free  from  im- 
purities, they  give  an  infallible  result. 

A  remarkable  exemplification  of  the  necessity 
of  this  qualification  occurred  in  a  trial  in  which 
Reinsch's  test,  which  hcid  previously  been  regarded 
as  infallible  in  the  separation  of  arsenic,  turned  out 
to  be  fallacious  when  applied  to  potassium  chlorate  ; 
and,  in  fact,  the  arsenic  which  was  found  in  the 
mixture  had  been  liberated  from  the  copper  gauze 
employed  in  the  experiment  (b). 

In  general,  therefore,  it  may  be  considered  as  a 
sound  rule  of  procedure,  founded  in  justice  and 
prudence,  that  such  evidence,  whenever  it  is  capable 
of  being  obtained,  ought  to  be  adduced,  and  in  such 
circumstances  the  failure  to  adduce  such  evidence, 
unexplained  by  satisfactory  reasons,  gives  serious 
ground  for  doubt  as  to  the  reality  of  the  alleged 
poisoning. 

But  some  of  the  vegetable  poisons  are,  in  the 

{b)  Reg.  V.  Smethurst,  C.  C.  C.  Sess.  Pap.,  Aug.  1859,  see  p.  138, 
supra.  But  arsenic  was  also  found  in  an  evacuation  not  complicated 
with  the  same  source  of  fallacy. 


312  PROOF    OF    THE    CORPUS    DELICTI 

present  state  of  science,  beyond  the  reach  of 
chemical  processes,  and,  under  certain  conditions, ' 
also  beyond  the  reach  of  physiological  methods  (^). 
The  offender  himself,  by  his  chemical  knowledge 
and  choice  of  means,  by  the  administration  of 
minimum  doses,  or  by  the  destruction  of  the  portions 
of  the  body  containing  the  suspected  matter,  or  by 
the  destruction,  dilution,  or  other  tampering  with 
its  exa^eta  or  contents,  may  have  rendered  detection 
by  the  reproduction  of  the  deadly  agent  impracti- 
cable ;  or  the  absorption  of  the  poison,  or  a  want  of 
skill  in  the  experimenter,  or  failure  to  employ  the 
proper  means,  or  other  cause  may  have  rendered 
the  necessary  chemical  researches  impracticable, 
unsatisfactory  or  inconclusive  (rt').  The  concurrence, 
moreover,  of  a  plurality  of  characteristic  tests, 
separately  fallacious,  but  fallacious  from  different 
causes,  may,  in  connection  with  strong  moral  facts, 
yield  a  result  of  so  high  a  degree  of  probability  as 

{c)  The  Editor  is  indebted  to  Dr.  Dupre,  F.R.S.,  for  the  following 
note  : — 

"  As  regards  chemical  processes  the  case  can  be  stated  definitely, 
since,  in  the  case  of  some  vegetable  poisons,  even  under  the  most 
favourable  conditions,  chemical  methods  alone  would  not  enable  us 
to  determine,  with  any  certainty,  the  particular  poison  present. 

"  With  regard  to  physiological  methods  the  case  is  somewhat 
different.  Under  favourable  conditions,  i.e.  a  relatively  large  dose  of 
poison  administered,  speedy  death  of  the  person  poisoned,  and  the 
examination  begun  soon  after  death,  there  is,  probably,  no  vegetable 
poison  which  could  not  then  be  identified  by  physiological  tests,  aided 
by  chemical  processes.  When,  however,  the  amount  of  poison  given 
is  small,  only  just  sufficient  to  cause  death,  when  the  person  has 
sui'vived  for  some  time  after  the  administration  of  the  poison,  and, 
lastly,  the  examination  is  begun  some  length  of  time  after  death,  even 
physiological  methods  might,  and  probably  would,  fail  to  identify  the 
poison." 

id)  Rexv.  Dotiellan,  pp.  324-331,  ijifra  ;  Reg.  v.  Sjiieihurst  {set  last 
paj^e)  ;  Reg.  v.  Palmer,  pp.  344-351,  infra. 


IN    CASES    OF    POISONING.  313 

to  be  perfectly  convincing,  though  the  poison  has 
not  been  reproduced  (e). 

It  would  be  most  unreasonable,  therefore,  and 
lead  to  the  grossest  injustice,  and  in  some  circum- 
stances to  impunity  for  the  worst  of  crimes,  to 
require,  as  an  imperative  rule  of  law,  that  the  fact 
of  poisoning  shall  be  established  by  any  special  and 
exclusive  medium  of  proof,  when  that  kind  of  proof 
is  unattainable,  and  especially  if  it  has  been  rendered 
so  by  the  act  of  the  offender  himself.  No  universal 
and  invariable  rule,  therefore,  can  be  laid  down  ; 
and  every  case  must  depend  upon  its  own  particular 
circumstances  ;  and  as,  in  all  other  cases,  the  corptis 
delicti  must  be  proved  by  the  best  evidence  which 
is  capable  of  being  adduced,  and  by  such  an  amount 
and  combination  of  relevant  facts,  whether  direct  or 
circumstantial,  as  establish  the  factum  probanduni 
to  a  moral  certainty,  and  to  the  exclusion  of  every 
other  reasonable  hypothesis. 

Tawell's  case,  which  has  been  referred  to  more 
than  once  in  these  pages,  is  a  useful  illustration  of 
the  kind  of  evidence  necessary  to  prove  the  corpus 
delicti,  and  contains  an  exhaustive  summing-up  of 
Mr.  Baron  Parke  as  to  the  duties  of  a  jury  in  cases 
of  this  kind.  The  prisoner  was  tried  at  the  Ayles- 
bury Spring  Assizes,  1845,  ^O''  the  murder  of  Sarah 
Hart  by  poisoning  her  with  prussic  acid.  The 
deceased  woman  entered  the  prisoner's  service 
shortly  before  the  death  of  his  first  wife,  and  when 

{e)  Rex  V.  Elder,  Syme's  Justiciary  Rep.  71,  at  p.    108  ;  and  see 
Rex  V.  Dontmll,  pp.  331-336,  ift/ra. 


314       PROOF  OF  THE  CORPUS  DELICTI 

she  left  his  service  was  pregnant  by  him,  and 
eventually  bore  him  two  children.  At  the  time  of 
the  murder  she  was  residing  in  a  small  cottage  at 
Slough,  and  was  receiving  ^13  a  quarter  from  the 
prisoner,  which  was  her  only  means  of  support. 
The  prisoner  had  married  a  second  wife,  and  was 
living  in  apparent  comfort  and  respectability  at 
Berkhampstead,  though  his  account  with  his  bankers 
was  overdrawn.  On  the  ist  of  January,  Sarah 
Hart's  next-door  neighbour,  hearing  screams,  came 
out  of  her  cottage,  walked  down  the  garden  path, 
and  went  to  the  garden  gate  of  the  deceased 
woman's  cottage,  where  she  met  the  prisoner  coming 
out  of  the  gate,  evidently  agitated  and  in  haste.  It 
being  dark,  she  was  carrying  a  candle,  and  looked 
at  the  prisoner  and  passed  a  remark  to  him  ;  and  at 
the  trial  swore  to  his  identity.  He  hurried  on 
towards  Slough,  and  she  went  into  the  cottage 
where  she  found  the  deceased  woman  on  the  floor 
moaning  ;  by  the  time  a  doctor  was  fetched  she 
was  dead.  It  was  proved  that  shortly  before  this 
the  woman  was  quite  well,  and  had  fetched  a  bottle 
of  porter  from  a  neighbouring  house,  and  had 
borrowed  a  corkscrew.  The  bottle  was  in  the 
room  open,  and  two  tumblers  had  been  used.  It 
was  proved  that  on  a  previous  occasion,  when  she 
had  taken  porter  with  the  prisoner,  she  was  taken 
suddenly  ill.  The  woman's  stomach  was  taken  to 
London,  and  after  tests  for  oxalic  acid  and  other 
poisons  had  been  applied,  prussic  acid  was  found, 
and  the  medical  witnesses  came  to  the  conclusion 
that  she  had  died  of  prussic  acid  poisoning.  At 
that  time  it  was  not  known  that  the  prisoner  was  in 


IN    CASES    OF    POISONING.  315 

the  habit  of  buying  prussic  acid  ;  but  it  was  proved 
on  the  trial  that  on  the  day  of  the  murder  he  had 
bought  two  drachms  of  Scheele's  prussic  acid  in 
Bishopsgate  Street,  bringing  his  own  bottle  to  be 
filled,  but  taking  it  away  in  another  bottle  ;  also 
that  on  the  following  day  he  had  none,  for  he  went 
back  to  the  shop  and  said  he  had  lost  it,  and  had 
the  bottle  which  he  had  left  the  previous  day  filled. 
When  arrested  he  declared  that  he  had  not  been  to 
Slough. 

The  defence  was  largely  based  on  the  fact  that 
the  prisoner  bought  prussic  acid  for  external  appli- 
cation for  varicose  veins — which  appeared  to  be  true, 
so  far  as  it  went — that  there  was  no  proof  that  the 
woman  died  from  the  effects  of  prussic  acid,  and 
that  its  presence  was  due  to  the  pips  of  apples 
which  she  had  eaten.  But  it  was  proved  by  the 
medical  men  that  prussic  acid  could  not  be  obtained 
from  food  by  natural  digestion,  but  only  by  distilla- 
tion, and,  as  the  learned  judge  pointed  out  to  the 
jury,  the  peculiar  smell  of  prussic  acid  was  noticed 
in  the  stomach  before  it  could  have  been  set  free 
by  distillation.  It  was  strenuously  urged  by  the 
counsel  for  the  prisoner  that  it  was  a  rule  of  law 
that  there  ought  to  be  positive  proof  of  the  7node  of 
death,  and  that  such  a  quantity  of  poison  must  be 
found  in  the  body  of  the  deceased  as  would 
necessarily  occasion  death.  But  this  doctrine  was 
peremptorily  repudiated  by  Mr.  Baron  Parke,  who 
told  the  jury  :  "  If  the  evidence  satisfies  you  that  the 
death  was  occasioned  by  poison,  and  that  that  poison 
was  administered  by  the  prisoner — if  that  is  proved 
by  circumstantial  evidence,  it   is  not  necessary  to 


J 


1 6  PROOF    OF    THE    CORPUS    DELICTI 


give  direct  and  positive  proof  of  what  is  the  quantity 
which  woLikl  destroy  hfe,  nor  is  it  necessary  to 
prove  that  such  a  quantity  was  found  in  the  body  of 
the  deceased,  if  the  other  facts  lead  you  to  the  con- 
clusion that  the  death  was  occasioned  by  poison, 
and  that  it  was  knowinirly  administered  by  the 
prisoner.  You  must  take  this  fact,  just  the  same  as 
all  the  other  parts  of  the  case,  and  see  if  you  are 
satisfied,  as  reasonable  men,  whether  the  prisoner  is 
guilty  or  not.  The  only  fact  which  the  law  requires 
to  be  proved  by  direct  and  positive  evidence  is  the 
death  of  the  party,  by  finding  the  body  ;  or  when 
such  proof  is  absolutely  impossible,  by  circum- 
stantial evidence  leading  closely  to  that  result — as 
where  a  body  was  thrown  overboard  far  from  land — 
when  it  is  quite  enough  to  prove  that  fact  without 
producing  the  body." 

His  Lordship,  in  a  subsequent  part  of  his  charge, 
said  .  "  There  is  very  reasonable  evidence — sup- 
posing that  to  be  required,  which  I  tell  you  is 
not — that  the  quantity  of  prussic  acid  in  the 
stomach  amounted  to  one  grain  ;  and  although 
that  is  not  necessary  to  be  proved,  the  scientific 
evidence  shows  that  one  grain  may  be  enough  to 
destroy  life."  In  reference  to  the  argument  urged 
by  the  prisoner's  counsel,  that  the  deceased  might 
have  died  from  some  sudden  emotion,  the  learned 
Judge  said  that  it  was  within  the  range  of  possi- 
bility that  a  person  might  so  die  without  leaving 
any  trace  on  the  brain  ;  they,  however,  were  to 
judge  whether  they  could  attribute  death  to  that 
cause,  if  they  found  strong  evidence  of  the  presence 
of  poison  ;  because  they  were  not  to  have  recourse 


IN    CASES    OF    POISONING.  317 

to  mere  conjecture  ;  that,  where  the  result  of  the 
evidence  gave  them  the  existence  of  a  cause  to 
which  it  might  be  rationally  attributed,  they  were 
not  to  suppose,  with(3Ut  any  reason  for  doing  so, 
that  it  was  to  be  attributed  to  any  other  cause  (f). 

Lord  Campbell,  in  Palmer's  case,  said  that  it  was 
not  to  be  expected  that  witnesses  should  be  called 
to  state  that  they  saw  the  deadly  poison  ad- 
ministered by  the  prisoner,  or  mixed  up  by  the 
prisoner  openly  before  them.  Circumstantial  evi- 
dence, as  to  that,  continued  the  learned  Judge,  is  all 
that  can  be  reasonably  expected  ;  and  if  there  were 
a  series  of  circumstances  leading  to  the  conclusion 
of  guilt,  a  verdict  of  guilty  might  satisfactorily  be 
pronounced  {g).  With  respect  to  the  consideration 
that  no  strychnia  was  found  in  the  body,  it  was  for 
them  to  consider  ;  but  there  was  no  rule  of  law  ac- 
cording to  which  the  poison  must  be  found  in  the 
body  of  the  deceased,  and  all  that  they  knew 
respecting  the  poison  not  being  in  the  body  was, 
that  in  that  part  of  the  body  that  w^as  analysed  by 
the  witnesses  no  strychnia  had  been  found  (/^). 

5.  Of  the  various  heads  of  evidence  in  charges 
of  poisoning,  that  of  moral  conduct  is  of  most 
general  interest.  The  data  of  physiological  and 
pathological  and  chemical  science  must  always  be 
matter  of  opinion  testified  to  by  skilled  witnesses  ; 
whereas,  in  the  forensic  discussion  of  moral  facts, 
appeal  is   necessarily  made  to  those  psychological 

(/)  Shorthand  Report  ;  for  references  see  p.  84,  supra, 
{g)  Official  Shorthand  Report,  1856,  p.  308. 
Ih)  lb.  pp.  319-396. 


3l8  PROOF    OF    THE    CORPUS    DELICTI 

principles  of  our  nature  which  i^ive  them  pertinence 
and  significance,  and  upon  which  intelligent  persons 
are  capable  of  forming  a  more  or  less  trustworthy 
judgment.  It  would  be  absurd  to  suppose  that 
such  facts,  when  clearly  connected  by  adequate  in- 
dependent evidence  with  a  corpus  delicti^  are  simply 
fortuitous  and  phenomenal  ;  on  the  contrary,  they 
are  the  natural  and  unmistakable  manifestations  of 
the  secret  workings  of  the  mind,  not  only  throwing 
light  upon  and  bringing  into  relief  the  character  of 
the  act  itself,  but  tending  also  to  discriminate  the 
individual  guilty  actor.  His  necessities,  his  anti- 
pathies, or  other  motives,  his  reluctance  to  permit 
examination  of  the  body,  or  its  contents  or  excreta, 
or  of  other  suspected  matter — his  contrivances  to 
prevent  it,  his  attempts  to  tamper  with  the  witnesses 
or  the  officers  of  justice,  or  with  such  suspected 
matter,  or  with  any  other  article  of  real  evidence — 
his  falsehoods,  subterfuges,  and  evasions — these  and 
many  other  circumstances  constitute  most  material 
explanatory  parts  of  the  res  gestce,  and  afford 
relevant  and  frequently  conclusive  evidence,  from 
which  his  guilt  may  be  inferred. 

In  most  criminal  charges,  the  evidence  of  the 
corpus  delicti  is  separable  from  that  which  applies  to 
the  indication  of  the  offender ;  but  in  cases  of 
poisoning,  it  is  often  impossible  to  obtain  conclusive 
evidence  of  the  corpzis  delicti,  irrespectively  of  the 
explanatory  evidence  of  moral  conduct ;  and  Mr. 
justice  BuUer,  in  Donellan's  case,  told  the  jury  that 
**  if  there  was  a  doubt  upon  the  evidence  of  the  phy- 
sical witnesses,  they  must  take  into  their  considera- 


IN    CASES    OF    POISONING.  3^9 

tion  all  the  other  circumstances,  either  to  show  that 
there  was  poison  administered,  or  that  there  was 
not,  and  that  every  part  of  the  prisoner's  conduct 
was  material  to  be  considered  "  (/).  So  in  Donnall  s 
case,  Mr.  Justice  Abbott,  in  summing  up,  said  to  the 
jury  that  there  were  two  important  questions  :  first, 
did  the  deceased  die  of  poison  ?  and  if  they  should 
be  of  opinion  that  she  did,  then,  whether  they  were 
satisfied  from  the  evidence  that  the  poison  was 
administered  by  the  prisoner  or  by  his  means  ? 
There  were  some  parts  of  the  evidence  which  ap- 
peared to  him  equally  applicable  to  both  questions, 
and  those  parts  were  what  related  to  the  conduct  of 
the  prisoner  during  the  time  of  the  opening  and 
inspection  of  the  body  ;  his  recommendation  of  a 
shell  and  the  early  burial  ;  to  which  might  be  added 
the  circumstances,  not  much  to  be  relied  upon, 
relative  to  his  endeavours  to  evade  his  apprehension. 
His  Lordship  also  said,  as  to  the  question  whether 
the  deceased  died  by  poison,  "  in  considering  what 
the  medical  men  have  said  upon  the  one  side  and  the 
other,  you  must  take  into  account  the  conduct  of  the 
prisoner  in  urging  a  hasty  funeral,  and  his  conduct 
in  throwing  away  the  contents  of  the  jug  into  the 
chamber  utensil  "  (jk). 

The  Lord  Chief  Justice  Lord  Campbell,  in 
his  charge  to  the  jury  in  Palmer's  case,  said  that 
"  in    cases    of    this    sort    the    evidence    had    often 

(/)  Gurney's  Shorthand  Report,  p.  53  ;  see  p.  37,  supra.  A  full 
account  of  the  case  is  given  at  pp.  324-331,  infra. 

ik)  Frazer's  Shorthand  Report,  pp.  127,  177.  See  pp.  331-336,  i7i/ra 
where  a  full  account  of  this  case  is  given 


320       PROOF  OF  THE  CORPUS  DELICTI 

been  divided  into  medical  and  moral  evidence ;  the 
medical  being"  that  of  the  scientific  men,  and  the 
moral  the  circumstantial  facts  which  are  calculated 
to  prove  the  truth  of  the  charge  against  the  party 
accused.  They  cannot,"  he  continued,  "  be  finally 
separated  in  the  minds  of  the  jury,  because  it  is  by 
the  combination  of  the  two  species  of  evidence  that 
their  verdict  ought  to  be  found.  In  this  case  you 
will  look  at  the  medical  evidence  to  see  whether 
the  deceased,  in  your  opinion,  did  die  by  strychnia 
or  by  natural  disease  ;  and  you  will  look  at  what  is 
called  the  moral  evidence,  and  consider  whether 
that  shows  that  the  prisoner  not  only  had  the 
opportunity,  but  that  he  actually  availed  himself  of 
that  opportunity,  to  administer  to  the  deceased  the 
deadly  poison  of  which  he  died  "  (/),  His  Lordship 
also  said  "  It  is  impossible  that  you  should  not  pay 
attention  to  the  conduct  of  the  prisoner,  and  there 
are  some  instances  of  his  conduct  as  to  which  you 
will  say  whether  they  belong  to  what  might  be 
expected  from  an  innocent  or  a  guilty  man.  He  was 
eager  to  have  the  body  fastened  down  in  the  coffin. 
Then  with  r'^gfard  to  the  bettingr-book,  there  is  cer- 
tainly  evidence  from  which  you  may  infer  that  he 
did  get  possession  of  the  deceased's  betting-book, 
and  that  he  abstracted  it  and  concealed  it.  Then, 
you  must  not  omit  his  conduct  in  trying  to  bribe  the 
post-boy  to  overturn  the  carriage  in  which  the  jar 
was  being  conveyed  to  be  analysed  in  London,  and 
from  which  evidence  might  be  obtained  of  his  guilt. 
Again,  you  find  him  tampering  with  the  post-master, 
and  procuring  from  him  the  opening  of  a  letter,  from 

(/)  Reg.  V.  Palmer,  p.  344,  in^ra.     Shorthand  Report,  p.  308. 


IN    CASES    OF    POISONING.  32 1 

the  person  who  had  been  examining  the  contents  of 
the  jar  to  the  attorney  employed  in  the  case.  And 
then,  you  have  tampering  with  the  coroner,  and  an 
attempt  to  induce  him  to  procure  a  verdict  from  the 
coroner's  jury,  which  would  amount  to  an  acquittal. 
These  are  serious  matters  for  your  consideration, 
but  you,  and  you  alone,  will  say  what  inference  is  to 
be  drawn  from  them.  If  not  answered,  they  cer- 
tainly present  a  serious  case  for  your  considera- 
tion "  (;;/). 

Among  the  most  important  circumstances  of 
moral  conduct,  and  in  analogy  with  the  rules  which 
prevail  in  the  proof  of  the  corpus  delicti  in  other 
cases,  may  be  mentioned  former  acts  of  poisoning, 
or  attempts  to  poison,  whether  the  same  individual, 
or  other  members  of  the  same  family,  where  such 
successive  administrations  throw  light  upon  the 
particular  act  which  forms  the  subject  of  inquiry. 
On  a  trial  for  murder  by  the  administration  of 
prussic  acid  in  porter,  evidence  was  admitted  that 
the  deceased  had  been  taken  ill  several  months 
before,  after  partaking  of  porter  with  the  prisoner  (72). 
And  upon  the  trial  of  a  woman  for  the  murder  of 
her  husband  by  arsenic  in  September,  evidence  was 
admitted  of  arsenic  having  been  taken  by  two  of 
her  sons,  one  of  whom  died  in  December,  and  the 
other  in  March  following,  and  also  by  a  third  son, 
who  took  arsenic  in  April  following,  but  did  not  die. 
Evidence  was  also  admitted  of  a  similarity  of  sym- 
ptoms in  the  four  cases,  that  the  prisoner  lived  in  the 
same  house  with   her  husband  and   sons,  and  pre- 

(;«)  Shorthand  Report  p.  320.     («)  Reg.  v.  Tawell,  pp.  313-317,  supra, 

C.E.  y 


32  2       PROOF  OF  THE  CORPUS  DELICTI 

pared  tVieir  tea,  cooked  their  victuals,  and  distributed 
them  to  the  four  parties.  Lord  Chief  Baron  Pollock 
said  his  oj-)inion  was  that  evidence  was  receivable 
that  the  deaths  of  two  sons,  and  the  illness  of  the 
third,  proceeded  from  the  same  cause,  namely, 
arsenic.  The  tendency  of  such  evidence,  he  said, 
was  to  prove,  and  to  confirm  the  proof  already 
given,  that  the  death  of  the  husband,  whether 
felonious  or  not,  was  occasioned  by  arsenic.  In 
that  case  he  thought  it  wholly  immaterial  whether 
the  deaths  of  the  sons  took  place  before  or  after 
the  death  of  the  husband.  The  domestic  history  of 
the  family  during  the  period  that  the  four  deaths 
occurred,  was  also  receivable  in  evidence  to  show 
that  during  that  time  arsenic  had  been  taken  by  four 
members  of  it,  with  a  view  to  enable  the  jury  to 
determine  whether  such  taking  was  accidental  or 
not.  The  evidence,  he  said,  was  not  inadmissible, 
by  reason  of  its  tendency  to  prove,  or  to  create  a 
suspicion  of  a  subsequent  felony.  His  Lordship, 
after  taking  time  to  consider,  refused  to  reserve 
the  point  for  the  opinion  of  the  Judges,  under 
II  &  12  Vict.  c.  78,  and  stated  that  Mr.  Baron 
Alderson  and  Mr.  Justice  Talfourd  concurred  in 
opinion  with  him  {0). 

But,  nevertheless,  moral  facts  apparently  calculated 
to  create  the  greatest  suspicion  may  not  be  really 

{0)  Reg.  V.  Geering,  i8  L.  J.  M.  C.  215  ;  approved  in  a  recent  case 
before  the  Privy  Council  :  Makm  v.  The  A.  G.  for  New  South  Wales, 
1894,  App.  Cas.  57.  Cf.  3.\so  Reg.  v.  Francis,  L.R.  2  C.C.  128,  and 
Reg.  v.  Flanftagaft,  15  Cox,  403  (murder  by  arsenical  poisoning),  and 
other  cases  upon  this  subject  cited  and  discussed  in  Archbold's 
Criminal  Pleading  (22nd  ed.),  pp.  283-287.  See  also  note  to  Ch.  iiu 
s.  2,  p.  63,  supra. 


IN    CASES    OF    POISONING.  323 

of  a  suspicious  nature,  or  may  be  too  fallacious  and 
uncertain  to  justify  conviction,  especially  where  the 
corpus  delicti  is  matter  of  inference  only,  and  not 
established  by  independent  evidence.  Justice  re- 
quires that  such  facts  should  be  interpreted  in  a 
spirit  of  candour,  and  with  proper  allowance  for  the 
weaknesses  of  men  who  may  be  suddenly  placed 
in  circumstances  of  suspicion  and  difficulty.  It  is 
well  known,  for  example,  that  many  persons,  more 
especially  in  the  humbler  classes,  feel  great  repug- 
nance to  permit  the  bodies  of  their  friends  to  be 
subjected  to  anatomical  examination.  The  mani- 
festation of  such  repugnance  is  a  fact  to  be  taken 
into  account  like  all  other  facts.  But  althouQfh  in 
the  case  of  violent  or  sudden  death,  and  particu- 
larly when  caused  by  poison,  it  must  be  known  that 
the  post-7noi'tem  examination  is  of  the  highest  im- 
portance, it  by  no  means  follows  that  objection  to 
permit  such  examination  proceeds  from  the  con- 
sciousness of  guilt.  In  a  case  of  this  kind,  Mr. 
Baron  Rolfe  said  that  the  question  was,  from  what 
motive  the  reluctance  arose  ?  On  the  one  hand,  it 
was  suggested  that  it  was  because  the  prisoner  did 
not  wish  the  cause  of  his  wife's  death  to  be  in- 
vestigated, being  afraid  it  would  be  discovered  that 
she  had  died  from  arsenic  ;  on  the  other,  that  his 
reluctance  arose  from  his  horror  of  the  notion  of 
his  wife's  dead  body  being  taken  up,  and  exposed 
to  the  investio-ation  of  the  surgeons,  at  which  the 
feelings  were  apt  to  revolt.  Many  persons,  no 
doubt,  felt  very  great  horror  at  the  notion  of  such 
thino^s  beino-  clone  to  themselves,  or  those  connected 
with    them ;    whilst  others,   again,  were    indifferent 

Y  2 


324       PROOF  OF  THE  CORPUS  DELICTI 

on  the  subject,  leaving  their  own  bodies  to  be 
dissected.  P)iJt  few  persons  liked  to  have  their 
wives  or  their  daughters  so  exposed  ;  the  prisoner, 
said  the  learned  Judge,  might  not  be  one  of  those 
few,  and  his  feelings  on  that  subject  might  have 
prompted  the  remark  alleged  against  him  ;  and 
surely  he  must  have  known  that  any  reluctance 
expressed  by  him  to  an  inquiry,  or  wish  to  stop  it, 
would  only  tend  to  make  those,  who  were  about  to 
make  it,  persevere  (/). 

It  happens  of  necessity  that  in  every  case  of  the 
kind  under  discussion  there  is  a  concurrence  of 
evidence  derived,  if  not  from  all,  at  least  from 
several  of  the  sources  which  have  been  mentioned  ; 
so  that  the  strength  of  the  conviction  finally  pro- 
duced depends  not  merely  upon  the  sum  of  the 
separate  forces,  but  upon  that  superior  force  ana- 
logous to  a  geometrical  progression,  which  is  the 
consequence  of  their  combination. 

An  analysis  of  some  of  the  most  remarkable 
recorded  cases  of  criminal  poisoning  which  have 
occurred  in  our  judicial  annals,  will  form  an  interest- 
ing commentary  upon  the  general  rules  of  evidence, 
more  especially  in  their  application  to  the  inter- 
pretation of  moral  inculpatory  facts. 

John  Donellan,  Esq.,  was  tried  at  Warwick  spring 
assizes,  1781,  before  Mr.  Justice  Buller,  for  the 
murder  of  Sir  Theodosius  Boughton,  his  brother- 
in-law,    a  young  man    of   fortune,    twenty   years   of 

(Ji)  Reg  V.  Graham^  pp.  297-300,  supra. 


IN    CASES    OF    POISONING.  325 

age,  who  up  to  the  moment  of  his  death  had  been 
in  good  health  and  spirits,  with  the  exception  of 
a  trifling  local  ailment,  for  which  he  occasionally 
took  a  laxative  draught.  Mrs.  Donellan  was  the 
sister  of  the  deceased,  and  together  with  Lady 
Boughton  his  mother  lived  with  him  at  Lawford 
Hall,  the  family  mansion.  On  attaining  twenty- 
one.  Sir  Theodosius  would  have  been  entitled 
absolutely  to  an  estate  of  ^2,000  per  annum,  the 
greater  part  of  which,  in  the  event  of  his  dying 
under  that  age,  would  have  descended  to  the 
prisoner's  wife.  For  some  time  before  the  death  of 
Sir  Theodosius,  the  prisoner  had  on  several 
occasions  falsely  represented  his  health  to  be  very 
bad,  and  his  life  to  be  precarious,  and  not  worth  a 
year's  purchase,  though  to  all  appearance  he  was 
well  and  in  good  health.  On  the  29th  of  August 
the  apothecary  in  attendance  sent  him  a  mild  and 
harmless  draught,  to  be  taken  the  next  morning. 
In  the  evening  the  deceased  was  out  fishing,  and 
the  prisoner  told  Lady  Boughton  that  he  had 
been  out  with  him,  and  that  he  had  imprudently 
got  his  feet  wet,  both  of  which  statements  were 
false. 

When  called  the  following  morning  he  was  in 
good  health  ;  and  about  seven  o'clock  his  mother 
went  to  his  chamber  for  the  purpose  of  giving 
him  his  draught,  which  was  kept — at  the  prisoner's 
suggestion,  made  after  Sir  Theodosius  had  on  one 
occasion  complained  of  forgetting  to  take  it — upon 
the  open  shelf  of  his  outer  room,  instead  of  locked 
up  in  his  closet  as  formerly.  On  taking  the 
draught  on  this  occasion  he  observed  that  it  smelt 


326       PROOF  OF  THE  CORPUS  DELICTI 

and  tasted  very  nauseous,  and  Lady  Boughton  re- 
marked that  she  thought  it  smelt  very  strongly  like 
bitter  almonds.  In  about  two  minutes  he  struggled 
very  much,  as  if  to  keep  the  medicine  down,  and 
Lady  Boughton  observed  a  gurgling  in  his  stomach  ; 
in  ten  minutes  he  seemed  inclined  to  doze,  but  in 
five  minutes  afterwards  she  found  him  with  his 
eyes  fixed,  his  teeth  clenched,  and  froth  running 
out  of  his  mouth,  and  within  half  an  hour  after 
taking  the  draught  he  died.  Lady  Boughton  ran 
downstairs  to  give  orders  to  a  servant  to  go  for  the 
apothecary,  who  lived  about  three  miles  distant ; 
and  in  less  than  five  minutes  the  prisoner  came  into 
the  bedroom,  and  after  she  had  given  him  an  ac- 
count of  the  manner  in  which  Sir  Theodosius  had 
been  taken,  he  asked  where  the  physic-bottle  was, 
and  she  showed  him  the  two  bottles.  The  prisoner 
then  took  up  one  of  them  and  said,  "  Is  this  it  ?  " 
and  being  answered  '*  Yes,"  he  poured  some  water 
out  of  the  water-bottle,  which  was  near,  into  the 
phial,  shook  it,  and  then  emptied  it  into  some  dirty 
water,  which  was  in  a  washhand  basin.  Lady 
Boughton  said,  "  You  should  not  meddle  with  the 
bottle  "  ;  upon  which  the  prisoner  snatched  up  the 
other  bottle  and  poured  water  into  that  also,  and 
shook  it,  and  then  put  his  finger  to  it  and  tasted  it. 
Lady  Boughton  again  asked  what  he  was  about, 
and  said  he  ought  not  to  meddle  with  the  bottles  ; 
on  which  he  replied,  he  did  it  to  taste  it,  though  he 
had  not  tasted  the  first  bottle.  The  prisoner 
ordered  a  servant  to  take  away  the  basin,  the  dirty 
things,  and  the  bottles,  and  put  the  bottles  into  her 
hands  for  that  purpose  ;  she  put  them  down  again, 


IN    CASES   OF    POISONING.  327 

on  being  directed  by  Lady  Bough  ton  to  do  so,  but 
subsequently,  while  Lady  Boughton's  back  was 
turned,  removed  them  on  the  peremptory  order  of 
the  prisoner. 

On  the  arrival  of  the  apothecary  the  prisoner 
said  the  deceased  had  been  out  the  preceding 
evening  fishing,  and  had  taken  cold  ;  but  he  said 
nothing  of  the  draught  which  he  had  taken.  The 
prisoner  had  a  still  in  his  own  room,  which  he 
had  used  for  distilling  roses,  and  a  few  days  after 
the  death  of  Sir  Theodosius  he  brought  it  full  of 
wet  lime  to  one  of  the  servants  to  be  cleaned.  The 
prisoner  made  several  false  and  inconsistent  state- 
ments to  the  servants  and  others  as  to  the  cause  of 
the  young  man's  death,  attributing  it  at  one  time  to 
his  having  been  out  late  fishing,  and  getting  his  feet 
wet,  and  at  another  to  the  bursting  of  a  blood-vessel, 
and  again  to  the  malady  for  which  he  was  under 
treatment,  and  the  medicine  given  to  him.  On  the 
day  of  his  death  he  wrote  to  Sir  William  Wheeler, 
Sir  Theodosius's  guardian,  to  inform  him  of  the  event, 
but  made  no  reference  to  its  suddenness.  The  coffin 
was  soldered  up  on  the  fourth  day  after  the  death. 
Two  days  afterwards.  Sir  William,  in  consequence 
of  the  rumours  which  had  reached  him  of  the 
manner  of  his  ward's  death,  and  that  suspicions 
were  entertained  that  he  had  died  from  the  effect 
of  poison,  wrote  a  letter  to  the  prisoner,  requesting 
that  an  examination  might  take  place,  and  men- 
tioning the  gentlemen  by  whom  he  wished  it  to  be 
conducted.  He  accordingly  sent  for  them,  but  did 
not  exhibit  Sir  William  Wheeler's  letter  alluding  to 
the  suspicion  that  the  deceased  had  been   poisoned, 


328       PROOF  OF  THE  CORPUS  DELICTI 

nor  did  he  mention  to  them  that  they  were  sent  for 
at  his  request.  Having  been  induced  by  the 
prisoner  to  suppose  the  case  to  be  one  of  ordinary 
sudden  death,  and  finding  the  body  in  an  advanced 
state  of  putrefaction,  the  medical  gentlemen  declined 
to  make  the  examination,  on  the  ground  that  it 
might  be  attended  with  personal  danger.  On  the 
following  day,  a  medical  man,  who  had  heard  of  their 
refusal  to  examine  the  body,  offered  to  do  so  ;  but 
the  prisoner  declined  his  offer,  on  the  ground  that 
he  had  not  been  directed  to  send  for  him.  On  the 
same  day  the  prisoner  wrote  to  Sir  William  a  letter, 
in  which  he  stated  that  the  medical  men  had  fully  satis- 
fied the  family,  and  endeavoured  to  account  for  the 
event  by  the  ailment  under  which  the  deceased  had 
been  suffering  ;  but  he  did  not  state  that  they  had 
not  made  the  examination.  Three  or  four  days  after- 
wards. Sir  William,  having  been  informed  that  the 
body  had  not  been  examined,  wrote  to  the  prisoner 
insisting  that  it  should  be  done  ;  which,  however,  he 
prevented,  by  various  disingenuous  contrivances,  and 
the  body  was  interred  without  examination 

In  the  meantime,  the  circumstances  having  become 
known  to  the  coroner,  he  caused  the  body  to  be  dis- 
interred, and  examined  on  the  eleventh  day  after 
death.  Putrefaction  was  found  to  be  far  advanced  ; 
the  head  was  not  opened,  nor  the  bowels  examined, 
and  in  other  respects  the  examination  was  incomplete. 
When  Lady  Boughton,  in  giving  evidence  before 
the  coroner's  inquest,  related  the  circumstance  of  the 
prisoner  having  rinsed  the  bottles,  he  was  observed 
to  take  hold  of  her  sleeve,  and  endeavour  to  check 
her ;  and  he  afterwards  told   her   that  she  had  no 


IN    CASES    OF    POISONING.  329 

occasion  to  have  mentioned  that  circumstance,  but 
only  to  answer  such  questions  as  were  put  to  her; 
and  in  a  letter  to  the  coroner  and  jury,  he 
endeavoured  to  impress  them  with  the  beHef  that 
the  deceased  had  inadvertently  poisoned  himself  with 
arsenic,  which  he  had  purchased  to  kill  fish.  Experi- 
ments made  by  the  administration  of  laurel-water  on 
various  animals  produced  convulsions  and  sudden 
death,  and  on  opening  one  of  them  a  strong-  smell  of 
laurel-water  was  perceived. 

Upon  the  trial,  four  medical  men,  three  phy- 
sicians, and  an  apothecary,  were  examined  on 
the  part  of  the  prosecution,  and  expressed  a 
very  decided  opinion — mainly  grounded  upon  the 
symptoms,  the  suddenness  of  the  death,  the  post- 
viorieni  appearances,  the  smell  of  the  draught, 
as  observed  by  Lady  Boughton,  and  the  similar 
effects  produced  by  experiments  upon  animals — that 
the  deceased  had  been  poisoned  with  laurel-water ; 
and  one  of  them  stated  that,  on  opening  the  body,  he 
had  been  affected  with  a  peculiar  acrimonious,  biting 
sensation  in  the  hands  and  mouth,  like  that  which 
affected  him  in  all  the  subsequent  experiments  with 
laurel-water.  An  eminent  surgeon  and  anatomist, 
examined  on  the  part  of  the  prisoner,  stated  a 
positive  opinion  that  the  symptoms  did  not  neces- 
sarily lead  to  the  conclusion  that  the  deceased 
had  been  poisoned,  and  that  the  appearances 
presented  upon  dissection  indicated  nothing  but 
putrefaction. 

Mr.  Justice  Duller,  in  his  charge  to  the  jury, 
called  their  attention  to  the  suddenness  of  the  death 
immediately  after  the  administration  of  the  draught 


2,2,0  PROOF  OF  THE  CORPUS  DELICTI 

— to  the  opinions  of  the  medical  witnesses  that  there 
was  nothing  to  lead  them  to  attribute  death  to  any 
Other  cause  than  that  draught  ;  to  the  prisoner's 
misrepresentations  as  to  the  deceased's  state  of 
health  at  a  time  when  he  appeared  to  others  to  be 
in  good  health  and  spirits  ;  to  his  contrivances  to 
prevent  the  examination  of  the  body,  and  emphati- 
cally to  the  fact  of  his  having  rinsed  out  the  bottle 
from  which  the  draught  had  been  taken,  "  which," 
said  the  learned  Judge,  "  does  carry  with  it  strong 
marks  of  knowledge  by  him  that  there  was  some- 
thing in  that  bottle  which  he  wished  should  never 
be  discovered  "  ;  and,  finally,  to  his  attempts  to 
check  the  witness  who  spoke  to  that  circumstance 
while  giving  her  evidence  before  the  coroner.  The 
prisoner  was  convicted  and  executed  (^). 

This  trial  has  given  rise  to  much  difference  of 
opinion.  Certainly  the  medical  evidence  was  un- 
satisfactory, and  there  was  no  evidence  to  prove  that 
the  prisoner  had  been  distilling  laurel-water  or  to 
connect  him  with  the  fatal  draught,  although  it  was 
proved  that  he  had  a  still  in  which  he  used  to  distil 
roses.  But  the  manner  in  which  death  occurred,  at 
the  very  instant  of  taking  the  draught,  was  all  but 
conclusive  that  it  contained  some  poisonous  ingre- 
dient which  was  the  cause  of  death  ;  and  though  this 
fact  alone  would  not  have  excluded  the  hypothesis 
of  a  sudden  death  from  accident  or  natural 
cause,  its  conjunction  with  so  many  circumstances 
of  moral  conduct  of  deep  inculpatory  import  could 
admit  of  explanation  only  on  the  hypothesis  of  the 
(g)  Shorthand  Report  by  Gurney,  1781.     See  p.  ^7^  supra. 


IN    CASES    OF    POISONING.  33 1 

prisoner's  guilt.  It  is  impossible  to  regard  those 
circumstances  in  any  other  light  than  as  the  neces- 
sary indications,  on  the  ordinary  principles  of  human 
nature,  of  the  moral  causal  origin  of  the  fatal 
catastrophe  (r). 

Robert  Sawle  Donnall,  a  surgeon  and  apothe- 
cary, was  tried  at  Launceston  spring  assizes,  1817, 
before  Mr.  Justice  Abbott,  for  the  murder  of  Mrs. 
Elizabeth  Downing,  his  mother-in-law. 

The  prisoner  and  the  deceased  were  next-door 
neighbours,  and  lived  upon  friendly  terms  ;  and  there 
was  no  suggestion  of  malice,  nor  could  any  motive  be 
assigned  which  could  have  induced  the  prisoner  to 
commit  such  an  act,  except  that  he  was  in  somewhat 
straitened  circumstances,  and  in  the  event  of  his 
mother-in-law's  death  would  have  become  entitled 
to  a  share  of  her  property.  On  the  19th  of  October 
the  deceased  drank  tea  at  the  prisoner's  house,  which 
was  handed  to  her  by  him,  and  returned  home  much 
indisposed,  retching  and  vomiting,  with  a  violent 
cramp  in  her  legs,  from  which  she  did  not  recover 
for  several  days.  About  a  fortnight  afterwards,  after 
returning  from  church,  and  dining  at  home  on  boiled 
rabbits  smothered  with  onions,  upon  the  invitation 
of  her  daughter  she  drank  tea  in  the  evening  at  the 
prisoner's  house  with  a  family  party.  The  prisoner 
on  this  occasion  also  handed  to  the  deceased  cocoa  and 
bread  and  butter,  proceeding  towards  her  chair  by  a 

(r)  The  account  of  this  case  in  The  Theory  of  Presumptive  Proof 
(London,  181 5)  suppresses  many  of  the  most  important  facts,  and  is 
in  other  respects  partial,  garbled,  and  inaccurate  ;  the  strictures  upon 
the  trial  are  most  unfair,  and  the  book  itself  is  utterly  unworthy  of  the 
author  to  whom  it  is  commonly  ascribed. 


332  PROOF    OF    THE    CORPUS    DELICTI 

circuitous  route  ;  but  it  was  stated  to  have  been  his 
habit  to  serve  his  visitors  himself,  and  not  to  allow 
them  to  rise  from  their  chairs.  When  Mrs.  Downing 
haddrunkabouthalf  of  her  second  cu}),  she  complained 
of  sickness  and  went  home,  where  she  was  seized 
with  retching  and  vomiting,  attended  with  frequent 
cramps ;  and  then  a  violent  purging  took  place, 
and  at  ei":ht  o'clock  the  next  mornintr  she  died. 
None  of  the  other  persons  who  had  been  present 
on  either  of  these  occasions  were  taken  ill.  To  a 
physician  called  in  by  the  prisoner  two  or  three 
hours  before  her  death,  he  stated  that  she  had  had 
an  attack  of  cJiolera  morbus.  The  nervous  coat  of 
the  stomach  was  found  to  be  partially  inflamed  or 
stellated  in  several  places,  and  the  villous  coat  was 
softened  by  the  action  of  some  corrosive  substance  ; 
the  blood-vessels  of  the  stomach  were  turgid,  and 
the  intestines,  particularly  near  the  stomach,  in- 
flamed. The  contents  of  the  stomach  were  placed 
in  a  jug,  in  a  room  to  which  the  prisoner  (to  whom 
at  that  time  no  suspicion  attached)  had  access,  for 
examination  ;  but  he  clandestinely  threw  them  into 
another  vessel  containing  a  quantity  of  water.  The 
prisoner  proposed  that  the  body  should  be  interred 
on  the  following  Wednesday,  assigning  as  a  reason 
for  so  early  an  interment  that  from  the  state  of  the 
corpse  there  would  be  danger  from  keeping  it 
longer — a  statement  for  which  there  was  no  founda- 
tion. He  also  evinced  much  easferness  to  accelerate 
the  funeral,  urging  the  person  who  had  the  charge  of 
it,  and  the  men  who  were  employed  in  making  the 
vault,  to  unusual  exertions. 

The    physician  called    in    to   the    deceased    con- 


IN    CASES    OF    POISONING.  333 

cUidecl  from  the  symptoms,  the  shortness  of  the 
ilhiess,  and  the  morbid  appearances,  that  she  had 
died  from  the  effects  of  some  active  poison  ;  and 
in  order  to  discover  the  particular  poison  sup- 
posed to  have  been  used,  he  appHed  to  the  con- 
tents of  the  stomach  the  tests  of  the  ammoniacal 
sulphate  of  copper,  or  common  blue  vitriol,  and 
the  ammoniacal  nitrate  of  silver,  or  lunar  caustic,  in 
solution,  which  severally  yielded  the  characteristic 
appearances  of  arsenic,  the  sulphate  of  copper  pro- 
ducing a  green  precipitate,  whereas  a  blue  precipitate 
is  formed  if  no  arsenic  is  present,  and  the  nitrate  of 
silver  producing-  a  yellow  precipitate,  instead  of  a 
white  precipitate,  which  is  thrown  down  if  no  arsenic 
is  present.  He  stated  that  he  considered  these 
tests  conclusive  and  infallible,  and  that  he  had  used 
them  because  they  would  detect  a  minute  portion 
of  arsenic  ;  on  which  account  he  considered  them 
to  be  more  proper  for  the  occasion,  as,  from  the 
smallness  of  the  quantity,  from  the  frequent  vomit- 
ings and  purgings,  and  the  appearance  of  the  tests, 
he  found  there  could  not  be  much.  Concludinpf 
that  bile  had  been  taken  into  the  stomach,  he  mixed 
some  bile  with  water,  and  applied  to  the  mixture 
the  same  tests,  but  found  no  indication  of  the 
presence  of  arsenic  ;  from  which  he  inferred  that 
the  presence  of  bile  would  not  alter  the  conclusion 
which  he  had  previously  drawn.  Having  been 
informed  that  the  deceased  had  eaten  onions,  he 
boiled  some  in  water  ;  and  after  pouring  off  the 
water  in  which  they  were  boiled,  he  poured  boiling 
water  over  them  and  left  them  standing  for  some 
time,  after  which  he  applied  the  same  tests  to  the 


334       PROOF  OF  THE  CORPUS  DELICTI 

solution  thus  procured,  and  ascertained  that  it  did 
not  produce  the  characteristic  appearances  of  arsenic. 
The  witness,  upon  his  cross-examination,  admitted 
that  the  symptoms  and  appearances  were  such  as 
might  have  been  occasioned  by  some  other  cause 
than  poisoning ;  that  the  reduction  test  would  have 
been  infallible  ;  and  that  it  might  have  been  adopted 
in  the  first  instance,  and  might  also  have  been  tried 
upon  the  matter  which  had  been  used  for  the  other 
experiments.  Upon  his  re-examination  he  accounted 
for  his  omission  of  the  reduction  test  by  stating  that 
the  quantity  of  matter  left  after  the  frequent  vomit- 
ings and  the  other  experiments  would  have  been 
too  small,  and  that  it  would  not  have  been  correct 
to  use  the  matter  which  had  been  subjected  to  the 
preceding  experiments. 

Several  medical  witnesses,  called  on  the  part  of 
the  prisoner,  stated  that  the  symptoms  and  morbid 
appearances,  though  they  were  such  as  might  and 
did  commonly  denote  poisoning,  did  not  exclude 
the  possibility  that  death  might  have  been  occa- 
sioned by  cholera  morbus  or  some  other  disease ; 
that  the  tests  which  had  been  resorted  to  were 
fallacious,  since  they  had  produced  the  same  charac- 
teristic appearances  upon  their  application  to  inno- 
cent matter,  namely,  the  sulphate  of  copper  a  green, 
and  the  nitrate  of  silver  a  yellow  precipitate,  on 
being  applied  to  an  infusion  of  onions  ;  and  that  the 
experiment  with  the  bile  was  also  fallacious,  since, 
from  the  presence  of  phosphoric  acid,  which  is  con- 
tained in  all  the  fluids  of  the  human  body,  the  same 
coloured  precipitate  would  be  thrown  down  by  putting 
lunar  caustic  into  a  solution  of  phosphate  of  soda. 


IN    CASES    OF    POISONING.  335 

The  learned  Judge,  in  his  charge  to  the  jury, 
said  that  none  of  the  evidence  of  the  witnesses  for 
the  prisoner  went  to  show  that  the  tests  employed 
by  the  medical  witnesses  on  the  other  side  would 
not  prove  that  arsenic  was  there  if  it  were  really 
there  ;  that  the  experiments  made  by  the  witnesses 
for  the  prisoner  were  made  with  onions  in  a  different 
state  from  what  onions  boiled  with  rabbits  are, 
as  by  that  mode  could  be  got  a  great  portion  of  the 
juice  or  strength  of  the  onions,  in  water,  whereas  in 
regard  to  onions  prepared  for  the  table,  or  boiled 
with  a  considerable  quantity  of  water,  a  good  por- 
tion of  their  juice  is  withdrawn  from  them  ;  that  as 
to  the  experiment  with  the  bile,  if  there  were  no 
phosphoric  acid  in  the  stomach  of  the  deceased,  or 
no  quantity  of  it  sufficient  to  produce  that  appear- 
ance, whatever  might  have  been  the  appearance  if 
sufficient  were  put  in,  then  the  experiment  was 
tried  on  something  that  did  not  contain  a  sufficient 
quantity  of  that  matter ;  that  although  the  same 
result  might  be  produced  by  that  matter,  if  there, 
yet  if  there  is  no  reason  to  suppose  that  that  matter 
was  there  or  there  in  sufficient  quantity,  then  he 
thought  the  suspicion  that  arsenic  was  there  was 
very  strong.  His  Lordship  also  said  :  "If  the  evi- 
dence as  to  the  opinions  of  the  learned  persons  who 
have  been  examined  on  both  sides  should  lead  you 
to  doubt  whether  you  should  attribute  the  death  of 
the  deceased  to  arsenic  having  been  administered 
to  her,  or  to  the  disease  called  c/iolei'a  morbus — 
then,  as  to  this  question  as  well  as  to  the  other 
question,  the  conduct  of  the  prisoner  is  most  material 
to    be    taken    into   consideration ;    for   he,   being   a 


2;^6  PROOF   OF    THE    CORPUS    DELICTI 

medical  man,  could  not  be  ignorant  of  many  thinirs 
as  to  which  ignorance  might  be  shown  in  other 
persons  :  he  could  hardly  be  ignorant  of  the  proper 
mode  of  treating  chole7'-a  morbus  ;  he  could  not  be 
ignorant  that  an  early  burial  was  not  necessary  ; 
and  when  an  operation  was  to  be  performed  in  order 
to  discover  the  cause  of  the  death,  he  should  not 
have  shown  a  backwardness  to  acquiesce  in  it ;  and 
when  it  was  performing,  and  he  attending,  he  could 
not  surely  be  ignorant  that  it  was  material  for  the 
purposes  of  the  investigation  that  the  contents  of 
the  stomach  should  be  preserved  for  minute  ex- 
amination "  (5).  His  Lordship  also  said:  "The 
conduct  of  the  prisoner,  his  eagerness  in  causing 
the  body  to  be  put  into  a  shell,  and  afterwards 
to  be  speedily  interred,  was  a  circumstance  most 
material  for  their  consideration,  with  reference  to 
both  the  questions  he  had  stated  ;  for  although  the 
examination  of  the  body  in  the  way  set  forth,  and 
the  experiments  that  were  made,  might  not  lead  to 
a  certain  conclusion  as  to  the  charge  stated,  that  the 
deceased  got  her  death  by  poison  administered  to 
her  by  the  prisoner,  yet  if  the  prisoner  as  a  medical 
man  had  been  so  wicked  as  to  administer  that 
poison,  he  must  have  known  that  the  examination 
of  the  body  would  divulge  it  "  (/).  Notwithstanding 
this  adverse  charge  of  the  learned  Judge,  the 
prisoner  was  acquitted. 

A  medical  man  was  tried  for  the  murder  of  his 
wife,  by  the  administration  of  prussic  acid.  They 
left  their  place  of  residence    at    Sunderland    on   a 

(j)  Shorthand  Report  by  Frazer  (1817),  p.  161.  (/)  Ibid.  p.  170. 


IN    CASES    OF    POISONING.  337 

journey  of  pleasure  to  London,  where  they  arrived 
on  the  4th  of  June,  and  went  into  lodgings.  On 
the  morning  of  the  8th,  being  the  Saturday  after 
their  arrival  in  town,  the  prisoner  rang  the  bell  for 
some  hot  water,  a  tumbler  and  a  spoon,  and  he  and 
his  wife  were  heard  conversing  in  their  chamber. 
About  a  quarter  before  eight  he  called  the  landlady 
upstairs,  saying  that  his  wife  was  very  ill  ;  the  land- 
lady found  her  lying  motionless  on  the  bed,  with  her 
eyes  shut  and  her  teeth  closed,  and  foaming  at  the 
mouth.  The  prisoner  said  she  had  had  fits  before, 
but  none  like  this,  and  that  she  would  not  come  out 
of  it ;  and  on  being  urged  to  send  for  a  doctor,  he 
said  he  was  a  doctor  himself,  that  he  should  have 
let  blood  before,  but  that  there  was  no  pulse,  that 
this  was  an  affection  of  the  heart,  and  that  her 
mother  died  in  the  same  way  nine  months  before  ; 
and  he  put  her  feet  and  hands  in  warm  water,  and 
applied  a  mustard  plaster  to  her  chest.  In  the 
meantime  a  medical  man  was  sent  for,  but  she  died 
before  his  arrival.  There  was  a  tumbler  close  to  the 
head  of  the  bed,  about  one-third  full  of  a  clear  white 
fluid,  and  an  empty  tumbler  on  the  other  side  of  the 
table,  and  a  paper  of  Epsom  salts.  In  reply  to  a 
question  from  the  medical  man,  the  prisoner  stated 
that  the  deceased  had  taken  nothing  but  a  little 
salts.  On  the  same  morning  he  ordered  a  grave 
for  interment  on  the  Tuesday  following. 

The  contents  of  the  stomach  were  found  to  contain 
prussic  acid  and  Epsom  salts  ;  and  it  was  deposed  that 
the  symptoms  were  similar  to  those  of  death  by  prussic 
acid,  but  they  might  be  the  effect  of  any  powerful 
sedative  poison,  and  that  the  means  resorted  to  by 

C.E.  Z 


2^S  PROOF  OF  THE  CORPUS  DELICTI 

the  prisoner  were  not  likely  to  promote  recovery, 
but  that  artificial  respiration  and  stimulants  were 
the  appropriate  remedies,  and  might  probably  have 
been  effectual.  The  prisoner  had  purchased  prussic 
acid  and  acetate  of  morphine  on  the  previous  day, 
from  a  vendor  of  medicines  with  whom  he  was 
intimate  ;  he  had,  however,  been  in  the  habit  of  using 
these  poisons,  under  advice,  for  a  complaint  in  the 
stomach.  Two  days  after  his  wife's  death  he  stated, 
to  the  medical  man  who  had  been  called  in,  that  on 
the  morning  in  question  he  was  about  to  take  some 
prussic  acid  ;  that  on  endeavouring  to  remove  the 
stopper  he  had  some  difficulty,  and  used  some  force 
with  the  handle  of  a  tooth-brush  ;  that  the  neck  of 
the  bottle  was  broken  by  the  force,  and  some  of  the 
acid  spilt  ;  that  he  placed  the  remainder  in  the 
tumbler,  and  went  into  the  front  room  to  fetch  a 
bottle  in  which  to  place  the  acid,  but  instead  of 
doing  so,  began  to  write  to  his  friends  in  the 
country,  when  in  a  few  minutes  he  heard  a  scream 
from  his  wife's  bedroom  ;  that  he  immediately  went 
to  her  ;  that  she  exclaimed  that  she  had  taken  some 
hot  drink,  and  called  for  cold  water,  and  that  the 
prussic  acid  was  undoubtedly  the  cause  of  her 
death. 

Upon  being  asked  what  he  had  done  with  the 
bottle,  he  said  he  had  destroyed  it,  and  assigned  as 
the  reason  why  he  had  not  mentioned  the  circum- 
stances before,  that  he  was  distressed  and  ashamed 
at  the  consequences  of  his  negligence.  According 
to  the  opinions  of  the  medical  witnesses,  after  the 
scream  or  shriek,  volition  and  sensibility  must  have 
ceased,  and   speech  would    have    been    impossible. 


IN    CASES    OF    POISONING.  339 

To  various  persons  in  the  north  of  England  the 
prisoner  wrote  false  accounts  of  his  wife's  state  of 
health.  In  one  of  them,  dated  from  the  Euston 
Hotel,  the  6th  of  June,  he  stated  that  she  was  un- 
well, and  had  two  medical  grentlemen  attendinof  her, 
and  that  he  was  apprehensive  of  a  miscarriage  In 
another,  dated  the  8th,  he  stated  that  he  had  had 
her  removed  to  private  lodgings,  where  she  was 
under  the  care  of  two  medical  men,  dangerously 
ill  ;  that  symptoms  of  premature  labour  had  come 
on,  and  that  one  of  the  medical  men  had  pronounced 
her  heart  to  be  diseased.  At  the  date  of  this  letter 
his  wife  was  cheerful  and  well,  and  all  these  state- 
ments respecting  her  health  were  false  ;  indeed  they 
had  not  been  to  any  hotel,  but  had  gone  into  lodgings 
on  their  arrival  in  London.  In  a  letter  dated  the  9th, 
he  stated  the  fact  of  her  death,  but  without  any  allu- 
sion to  the  cause  of  it ;  which  suppression,  in  a  sub- 
sequent letter,  he  stated  to  have  been  caused  by  the 
desire  of  concealing  the  shame  and  reproach  of  his 
negligence.  His  statement  to  his  landlady  that  his 
mother-in-law  had  died  from  disease  of  the  heart 
was  a  falsehood,  he  himself  having  certified  to  the 
registrar  of  burials  that  bilious  fever  was  the  cause 
of  her  death.  The  deceased  was  entitled  to  some 
leasehold  property,  to  which  the  prisoner  would  be- 
come entitled  absolutely  if  he  survived  her,  and  to  a 
copyhold  estate  which  was  limited  to  the  joint  use 
of  herself  and  her  husband,  so  that  the  survivor 
would  take  the  absolute  interest.  The  motive  sug- 
gested for  the  commission  of  the  alleged  murder 
was,  that  the  prisoner  might  become  at  once  the 
absolute  owner  of  his  wife's  property. 

z  2 


340       PROOF  OF  THE  CORPUS  DELICTI 

Mr.  Baron  Gurney  said  that  this  case  differed 
from  ahnost  every  other  case  he  had  ever  known,  in 
this  circumstance,  that  generally  there  was  a  difficulty 
in  ascertaining  whether  the  death  had  been  caused 
by  poison,  and  whether  the  poison  came  from  the 
hands  of  the  person  charged  with  the  crime  ;  but  that 
in  this  case  there  could  be  no  doubt  that  the  deceased 
had  come  to  her  death  by  a  poison  most  certain,  fatal, 
and  speedy  in  its  effects,  and  that  it  was  equally 
certain  that  it  came  from  the  hands  of  the  prisoner. 
It  had  been  proved  beyond  all  doubt  that  the 
prisoner  had  bought  the  poison,  and  had  placed  or 
left  it  unprotected  in  the  chamber  of  his  wife,  and 
the  question  was,  whether,  she  having  died  from 
poison,  it  had  been  administered  to  her  by  his  hand, 
or  whether  he  had  purposely  placed  it  in  her  way  in 
order  that  she  might  herself  take  it.  The  secrets  of 
all  hearts  were  known  to  God  alone,  and  human 
tribunals  could  only  judge  of  those  secrets  from  the 
conduct  of  the  individual  at  the  time.  In  this  case 
the  jury  had  the  conduct  of  the  prisoner,  his  words, 
his  writing,  his  demeanour,  proved  before  them,  and 
it  would  be  for  them  to  decide,  upon  the  whole  case, 
whether  they  believed  he  had  administered  the 
poison,  or  placed  it  within  the  reach  of  the  deceased 
in  order  that  she  might  take  it.  If  he  had  done 
either  of  those  things,  he  would  be  guilty  of  murder  ; 
if  they  thought  he  had  merely  acted  incautiously  and 
negligently  by  leaving  the  poison  in  the  way  in  which 
he  had  left  it,  he  had  not  been  guilty  of  murder.  He 
dwelt  upon  the  circumstances  that  the  parties  had 
lived  for  a  year  and  a  half  together  upon  terms  of 
mutual  affection,  that  the  marriage  took  place  with 


IN    CASES    OF    POISONING.  34 1 

the  consent  of  the  lady's  mother,  with  whom  they 
had  Hved  till  her  death,  that  the  visit  to  London  was 
well  known  to  their  friends,  and  that  the  place 
to  which  she  was  taken  was  where  he  had  lodged 
before,  and  near  the  residence  of  the  only  two 
persons  with  whom  he  was  acquainted  in  London. 

When  any  person  committed  a  heinous  crime, 
it  was  usual  and  natural,  said  the  learned  Judge, 
to  look  whether  there  existed  any  adequate  motive 
to  the  commission  of  it.  The  prisoner  being  about 
thirty,  and  his  wife  about  twenty-two  years  of  age, 
it  would  be  a  good  deal  to  say  that  the  desire 
to  possess  her  property  should  be  brought  forward 
as  a  oreat  motive  of  interest  to  excite  to  the  com- 
mission  of  such  a  crime.  Nevertheless,  it  was 
sometimes  found,  as  they  could  not  dive  into  the 
heart  and  ascertain  motives,  that  a  grave  crime 
might  be  committed,  although  no  motive  for  it  could 
be  found.  Inasmuch  as  the  great  question  the  jury 
had  to  decide  was  the  intention  of  the  prisoner,  it 
should  be  remembered  that  a  man  was  entitled  to  a 
candid  construction  of  his  words  and  actions,  particu- 
larly if  placed  in  circumstances  of  great  and 
unexpected  difficulty  ;  and  they  would  take  care  to 
give  what  fair  allowance  they  could  in  putting  a 
construction  upon  the  prisoner's  words  and  actions. 
He  also  laid  stress  upon  the  conduct  of  the  prisoner 
to  his  wife,  and  his  general  good  character  for 
kindness.  He  could  not  conceive  the  motive  which 
should  have  induced  the  prisoner,  in  the  letter  posted 
on  the  6th,  when  his  wife  was  well  and  cheerful,  to 
write  so  complete  a  fabrication  from  beginning  to 
end,    of    her    being   unwell    and    attended    by    two 


342       PROOF  OF  THE  CORPUS  DELICTI 

medical  mens  and  the  jury  would  observe  that  it  was 
written  on  the  very  day  on  which  the  prisoner  had 
made  arrangements  for  her  residence  with  a  friend 
during  his  absence  abroad.  When  the  letter  of  the 
Sth  was  written  did  not  appear,  but  it  was  proved  to 
have  been  posted  on  the  evening  of  that  day.  If  it 
was  written  before  the  death,  it  told  against  the 
prisoner.  It  concurred  with  the  letter  written  on 
the  6th,  and  practised  the  same  deception,  as  to  the 
two  medical  men,  upon  those  to  whom  it  was  ad- 
dressed. 

The  defence  was,  that  the  prisoner  had  been 
guilty  of  a  lamentable  indiscretion  ;  that  a  sudden 
event,  fatal  to  his  wife,  had  happened  ;  that  he 
was  overpowered  and  overwhelmed  by  the  result 
of  his  own  carelessness,  and  that  he  did  not  like  to 
divulge  the  truth.  The  awkward  fact,  however,  was, 
that  in  his  last  letter  he  had  pursued  exactly  the 
the  same  system  as  that  adopted  in  the  letter  written 
two  days  before.  They  would  recollect,  with  refer- 
ence to  the  letter  of  the  Sth,  that  on  that  day  he  had 
more  than  once  exclaimed,  "  This  is  all  my  fault." 
These  outbreaks  were  of  some  importance  for  the 
consideration  of  the  jury  in  giving,  as  compared 
with  the  letters,  all  indulgent  consideration  to  any 
language  used  by  the  prisoner,  after  an  event 
had  occurred  which  placed  him  in  a  situation  of 
difficulty  and  embarrassment.  In  comparing  the 
statement  set  up  for  the  defence  with  the  evidence 
of  the  medical  witnesses,  two  things  w^ere  of  a  good 
deal  of  importance.  The  prisoner's  statement  was, 
that  when  he  entered  the  bed-chamber,  his  wife  told 
him    what    had    occurred,    and    that    he    took    the 


IN    CASES    OF    POISONING.  343 

tumbler  out  of  her  hand.  The  medical  men  had  told 
the  jury  that  with  the  scream  that  had  been  spoken 
of,  all  volition  and  power  of  speech  would  cease  ;  but 
here  it  must  not  be  forgotten  that  the  judgment  of 
these  gentlemen  must  be  received  with  this  caution, 
that  none  of  them  had  ever  witnessed  the  effect  of 
prussic  acid  on  the  human  frame.  It  was  for  the  jury 
to  decide  whether  they  were  convinced,  beyond  any 
reasonable  doubt,  that  the  prisoner  either  adminis- 
tered, or  in  effect  caused  to  be  administered,  poison  to 
the  deceased  ;  if,  on  the  other  hand,  they  should  be  of 
opinion  that  he  had  been  merely  guilty  of  indiscretion, 
and  that,  in  consequence  of  the  sudden  and  awful 
event  which  had  occurred,  he  had  been  driven  to 
conceal  it  by  falsehood,  they  would  acquit  him.  No 
doubt  falsehood  often  placed  persons  having  recourse 
to  it  under  awkward  and  menacing  circumstances.  In 
this  case,  falsehood  had  been  much  resorted  to.  It 
was  shown  before  the  death,  in  the  statement  about 
the  two  medical  men  ;  that  falsehood  was  followed 
up  and  repeated  in  the  second  letter  ;  another  false- 
hood appeared  in  the  representation  that  his  mother- 
in-law,  who  had  died  of  bilious  fever,  as  appeared  by 
an  entry  in  the  register  under  his  own  hand,  had 
died  of  disease  of  the  heart.  If  they  thought  the 
case  conclusive,  however  painful  it  might  be,  it  would 
be  their  duty  to  pronounce  the  prisoner  guilty  ;  but 
if  they  thought  it  left  in  doubt  and  mystery,  so  that 
they  could  not  safely  proceed,  they  would  remember 
that  it  was  better  that  many  guilty  men  should  escape 
than  that  one  innocent  man  should  perish.  The 
prisoner  was  acquitted  (u). 

(«)  J?e£:  V.  Belaney^  C.  C.  C,  Sess,  Pap.,  Aug.  1844. 


344  PROOF    OF    THE    CORPUS    DELICTI 

Palmer's  case  is  perhaps  the  most  remarkable  one 
of  this  nature  on  record.  The  prisoner  who  lived 
at  Rufj^eley,  had  been  a  medical  practitioner,  but  had 
given  up  his  profession  for  the  pursuits  of  the  turf, 
in  the  course  of  which  he  became  intimate  with  a 
young  man  named  Cook,  who  was  addicted  to  the 
same  pursuits.  By  extensive  gambling  transactions 
Palmer  became  involved  in  great  pecuniary  diffi- 
culties, and  was  ultimately  driven  to  the  desperate 
expedient  of  borrowing  money  at  exorbitant  rates  of 
interest,  and  to  the  commission  of  forgeries  on  a 
large  scale.  In  1855  he  was  indebted  in  about 
p^20,ooo,  borrowed  at  sixty  per  cent,  interest  upon 
bills  (all  of  which  bore  the  forged  acceptances  of 
his  mother),  and  secured  in  part  by  the  assignment 
of  a  policy  of  assurance  for  ;^  13,000  on  the  life  of 
his  brother,  who  died  in  August  of  that  year.  To 
this  source  the  prisoner  had  looked  for  relief  from 
his  embarrassments,  but  the  office,  having  become 
acquainted  with  circumstances  which  mduced  them 
to  dispute  the  validity  of  the  policy  on  the  ground 
of  fraud,  declined  to  pay  the  sum  assured  ;  and  in 
consequence  the  holder  of  some  of  these  bills  issued 
writs  against  the  prisoner  and  his  mother,  which 
were  sent  into  the  country,  to  be  served  unless  he 
should  effect  some  satisfactory  arrangement.  Ex- 
posure, ruin,  and  punishment  thus  became  imminent, 
unless  some  means  could  be  devised  of  averting  the 
impending  disclosures. 

On  Tuesday  the  13th  of  November,  Cook  and 
Palmer  were  at  Shrewsbury  races,  where  Cook  won 
between  ;^2,ooo  and  ^3,000,  of  which  he  received 
;^7oo  or   ^800  on  the  course ;  the  remainder  was 


IN    CASES    OF    POISONING.  345 

payable  in  London  on  the  following  Monday 
(the  19th).  He  was  greatly  excited  by  his  success, 
and  the  prisoner  and  several  other  persons  spent 
the  following  evening  with  him,  after  the  conclusion 
of  the  races,  at  his  inn  in  Shrewsbury.  In  the 
course  of  the  evening  the  prisoner  was  seen  in 
the  passage  outside  his  own  room,  holding  up  a 
tumbler  to  a  gas-light ;  after  which  he  went,  with 
the  tumbler  in  his  hand,  into  the  room  where  Cook 
and  his  other  friends  were  sitting.  Soon  afterwards, 
on  drinking  some  brandy  and  water.  Cook  became 
suddenly  ill,  with  violent  vomiting,  and  it  was 
necessary  to  call  in  medical  assistance.  He  said  he 
had  been  dosed  by  the  prisoner,  and  handed  the 
money  he  had  about  him,  between  ^700  and  ;^8oo, 
to  a  friend  to  take  care  of,  who  returned  it  to  him 
the  next  morning,  after  his  recovery. 

Notwithstanding  these  suspicious  circumstances, 
such  was  the  prisoner's  influence  over  his  infatuated 
victim,  that  Cook  returned  from  Shrewsbury  to 
Rugeley  in  company  with  him  on  the  evening  of 
Thursday  (the  15th),  when,  on  their  arrival,  Cook 
went  to  his  lodgings  at  the  Talbot  Arms,  and  the 
prisoner  to  his  own  house  opposite.  On  the  Saturday 
and  Sunday  the  prisoner  called  many  times  to  see 
Cook,  who  was  repeatedly  taken  sick  and  ill  after 
taking  coffee  and  broth  from  the  hands  of  the  prisoner 
On  Monday  (the  19th)  he  got  up  much  better  ,  and 
the  prisoner  called  upon  him  early  in  the  morning, 
but  did  not  see  him  again  until  eight  or  nine  in 
the  evening,  having  in  the  interim,  as  it  turned  out, 
been  to  London.  In  the  course  of  that  evening 
Cook's  medical  attendant,  who  had  previously  seen 


346  PROOF    OF    THE    CORPUS    DELICTI 

bim,  left  at  the  Talbot  Arms  a  box  of  morphine  pills, 
which  was  taken  into  his  bedroom  by  the  prisoner, 
who  administered  the  pills.  Shortly  afterwards  the 
household  was  disturbed  by  screams  proceeding 
from  the  patient's  room.  He  was  found  sitting  up 
in  bed,  in  great  agony,  beating  the  bed-clothes, 
gasping  for  breath,  convulsed  with  a  jerking  and 
twitching  motion  all  over  his  body,  and  one  hand 
clenched  and  stiff,  but  conscious,  and  calling  to  those 
about  him  to  send  for  the  prisoner.  In  about  half 
an  hour  the  paroxysm  subsided,  and  he  became 
composed. 

On  the  next  morning  (Tuesday  the  20th), 
after  taking  coffee  from  the  hand  of  the  prisoner, 
Cook  was  again  affected  with  violent  vomiting, 
which  continued  throughout  the  day  ;  but  in  the 
evening  he  was  better,  and  in  good  spirits.  About 
seven  o'clock  he  was  visited  by  his  medical  at- 
tendant, whom  the  prisoner  urged  to  repeat  the 
morphine  pills,  as  on  the  night  before  ;  and  they 
went  together  to  the  surgery,  where  pills  were  pre- 
pared and  delivered  to  the  prisoner,  who  took  them 
away,  and  went  to  Cook's  room  about  eleven  o'clock, 
as  was  intended  and  supposed,  for  the  purpose  of 
administering  them  to  him  ;  so  that  he  had  the 
opportunity  in  the  interval  of  changing  them,  which 
there  can  be  no  doubt  he  did.  Cook  strongly 
objected  to  take  them,  because  he  had  been  made 
so  ill  the  night  before  ;  but  his  objections  were  over- 
come by  the  prisoner,  and  at  length  he  swallowed 
the  pills  presented  to  him.  Soon  after  midnight  he 
became  ill  with  the  same  agonising  symptoms  as 
on  the  preceding  night,  and  again  desired  that  the 


IN    CASES    OF    POISONING.  347 

prisoner  should  be  sent  for.  Such  was  the  rigidity 
of  his  Hmbs  that  it  was  found  impossible  to  raise 
him  up,  and  he  asked  to  be  turned  over  on  his  side; 
after  which  the  action  of  the  heart  gradually  ceased, 
and  in  a  quarter  of  an  hour  he  was  dead.  After 
death,  the  body  was  bent  back  like  a  bow,  and  if  it 
had  been  placed  upon  a  level  surface  it  would  have 
rested  upon  the  head  and  heels. 

Upon  receiving  information  of  the  young  man's 
death,  his  step-father,  who  lived  in  London,  went 
to  Rugeley,  arriving  on  Friday  (the  23rd),  to 
make  arrangements  for  his  funeral,  and  to  inquire 
into  the  state  of  his  affairs,  as  well  as  into  the 
circumstances  of  his  illness.  On  stating  to  the 
prisoner  that  he  understood  he  knew  something 
of  his  affairs,  he  was  told  by  the  prisoner  that 
there  were  /4,ooo  worth  of  bills  of  the  deceased's 
out,  to  which  his  (the  prisoner's)  name  was  attached, 
and  that  he  had  got  a  paper  drawn  up  by  a 
lawyer,  signed  by  the  deceased,  to  show  that 
he  had  never  received  any  benefit  from  them. 
The  step-father  then  inquired  if  there  were  no 
sporting  debts  owing  to  him,  to  which  the  prisoner 
said  there  was  nothing  of  the  sort  ;  and  on  ask- 
ing about  the  betting-book,  which  could  not  be 
found,  the  prisoner  said  it  would  be  of  no  use  if 
found,  as  when  a  man  dies  his  bets  are  done  with. 

Other  facts  now  began  to  turn  up  throwing  a 
sinister  light  upon  the  mysterious  events  of  the  last 
few  days.  It  was  discovered  that  the  prisoner  had 
procured  three  grains  of  strychnia  on  the  Monday 
evening,  and  a  second  quantity  of  six  grains  on  the 
following  day  ;  that  he  had  been  seen  to  search  the 


348       PROOF  OF  THE  CORPUS  DELICTI 

pockets,  and  to  grope  under  the  pillow  and  bolster 
of  the  unfortunate  man  before  his  body  was  cold  ; 
that  although  Cook's  betting-book  was  kept  on  the 
dressino-table  of  his  bedroom,  and  was  seen  there 
on  the  previous  night,  it  was  never  seen  after  his 
death  ;  that  the  prisoner  handed  to  a  friend  of  the 
deceased  five  guineas  as  the  whole  of  the  money 
that  was  found  belonging  to  him ;  that  he  had  been 
to  London  on  the  Monday,  and  procured  payment 
of  upwards  of  ^1,000  on  account  of  the  wagers 
won  by  the  deceased  at  Shrewsbury,  and  ap- 
propriated the  amount  in  payment  of  his  own 
losses,  and  in  part  payment  of  the  forged  ac- 
ceptances on  which  writs  had  been  issued ;  that 
before  the  races  he  w^as  short  of  money,  and  had 
borrowed  ,^'25  ;  that  he  had  lost  largely  at  the 
races,  but  had  subsequently  paid  considerable  sums 
to  various  creditors  ;  that  two  or  three  days  after 
Cook's  death  he  had  endeavoured  to  obtain  the 
attestation  by  an  attorney  to  a  forged  acknowledg- 
ment in  the  name  of  the  deceased  that  ^4,000 
of  bills  had  been  negotiated  by  the  prisoner  for 
his  benefit ;  and,  finally,  had  prevailed  upon  the 
medical  man  who  had  attended  the  deceased,  who 
was  of  a  very  advanced  age,  to  certify  that  he  had 
died  of  apoplexy. 

A  post-mortem  examination  was  made,  at  which 
the  prisoner  was  present,  and  the  stomach  and 
intestines  were  placed  m  a  jar  to  be  taken  to 
London  for  examination.  While  the  operation 
was  going  on,  the  prisoner  pushed  against  the 
medical  men  engaged  in  it,  so  as  to  shake  a 
portion  of  the    contents  of  the    stomach    into    the 


IN   CASES   OF    rOISONING.  349 

body.  The  jar  was  then  covered  with  parchment, 
tied  down,  and  sealed  and  placed  aside  ;  and  while 
the  attention  of  the  medical  men  was  still  engaged 
in  examining  the  body,  the  prisoner  removed  the 
jar  to  a  distance,  near  a  door  not  the  usual  way  out 
of  the  room,  and  it  was  found  that  two  slits  had 
been  cut  with  a  knife  through  the  double  skin 
which  formed  the  covering.  The  prisoner  having 
learned  that  the  jar  was  to  be  sent  to  London  the 
same  evening,  offered  the  driver  who  was  to  carry 
the  persons  in  charge  of  it  to  the  railway  station, 
/^lo  to  upset  the  carriage  and  break  the  jar.  The 
analytical  chemists,  to  whom  the  stomach  and 
intestines,  and,  subsequently,  other  parts  of  the  body, 
were  sent,  found  traces  of  antimony,  but  none  of 
strychnia,  or  any  other  poison  ;  and  sent  their 
report  by  post,  directed  to  the  attorney  at  Rugeley 
employed  in  the  investigation.  The  prisoner  incited 
the  post-master  to  betray  to  him  the  contents  of  this 
report  ;  and  wrote  a  confidential  letter  to  the 
coroner,  to  whom  during  the  course  of  the  inquiry 
he  sent  presents  of  fish  and  game,  stating  that  he 
had  seen  it  in  black  and  white  that  no  strychnia, 
prussic  acid,  or  opium  had  been  found,  and  express- 
ing his  hope  that  on  the  next  day  to  which  the 
inquest  stood  adjourned,  the  verdict  would  be  that 
of  death  from  natural  causes.  The  coroner's  jury 
found  a  verdict  of  wilful  murder  against  the  prisoner. 
Upon  tJie  trial  the  chemical  witnesses  examined  on 
the  part  of  the  prosecution  stated  that  the  stomach 
and  intestines  were  received  in  an  unfavourable 
state  for  finding  strychnia  had  it  been  there,  inasmuch 
as  the  stomach  had  been  cut  from  end  to  end,  and  the 


350  PROOF    OF    THE   CORPUS    DELICTI 

contents  were  gone,  and  the  mucous  surface,  in 
which  any  poison,  if  present,  would  naturally  be 
found,  had  been  lyino-  in  contact  with  the  intes- 
tines and  their  succulent  contents,  and  shaken 
up  with  them  ;  that  the  non-discovery  of  strychnia 
did  not  conclusively  prove  that  death  had  not 
been  caused  by  that  poison,  inasmuch  as  they  had 
failed  to  discover  it  in  animals  killed  for  the  purpose 
of  experiment  ;  that  if  a  minimum  dose  is  adminis- 
tered, it  disappears  by  absorption  into  the  blood  ; 
that  it  is  discoverable,  and  had  been  discovered 
when  administered  to  animals  in  excess  of  the 
quantity  required  to  destroy  life,  but  that  there  was 
no  known  process  by  which  it  could  be  discovered  in 
the  tissues,  if  present  there  only  in  a  small  quantity. 
On  the  other  hand,  witnesses  were  called  on  behalf 
of  the  prisoner,  who  disputed  the  theory  of  absorp- 
tion, and  stated  that  strychnia,  if  present,  is  always 
discoverable,  not  only  in  the  blood  and  in  the 
stomach  and  intestines,  and  their  contents,  but  also 
in  the  tissues  ;  that  there  was  nothing  in  the  con- 
dition of  the  parts  of  the  body  submitted  to  examina- 
tion to  preclude  the  detection  of  strychnia  ;  and  that, 
if  present,  it  might  have  been  found,  even  if  it  had 
been  administered  in  a  minimum  dose,  though,  on 
this  latter  point,  there  Vv'as  some  difference  of  opinion 
among  them. 

Numerous  medical  witnesses  of  the  highest  pro- 
fessional experience  and  character,  called  on  the 
part  of  the  Crown,  deposed  that  many  of  the  symp- 
toms, especially  in  the  progress  and  termination  of 
the  attack,  were  not  those  of  any  of  the  ordinary 
forms  of  tetanus,  idiopathic  or  traumatic,  or  of  any 


IN    CASES    OF    POISONING.  35 1 

known  disease  of  the  human  frame,  but  were  the 
peculiar  characteristics  of  poisoning  by  strychnia. 
Nor  were  there  in  these  respects  any  such  differences 
between  their  opinions  and  those  of  many  respect- 
able professional  witnesses  called  on  the  part  of  the 
prisoner,  as  might  not  be  accounted  for  by  the  im- 
perfect state  of  knowledge  of  all  the  forms  of  tetanic 
affection,  or  by  the  defects  of  the  physiological  and 
pathological  science  of  the  day.  Of  the  numerous 
professional  witnesses  examined  on  behalf  of  the 
prisoner,  some  ascribed  the  symptoms  to  tetanic 
affection  ;  others  to  various  forms  of  disease  from 
which  they  were  shown  to  be  clearly  distinguish- 
able ;  while  others,  again,  ascribed  them  to  physical 
causes  absolutely  absurd  and  incredible.  The  con- 
tradictions and  inconsistencies  in  the  testimony  of 
some  of  the  prisoner's  scientific  witnesses,  and  their 
obtrusive  zeal  and  manifest  purpose  of  obtaining  an 
acquittal,  deprived  it  of  all  moral  effect,  and  drew 
down  upon  several  of  them  the  severe  reprehension 
of  the  Court. 

After  a  protracted  trial  of  twelve  days,  the 
prisoner  was  found  guilty,  and  was  executed  pursu- 
ant to  his  sentence  (x)  ;  and  there  is  no  doubt  that 
this  was  only  one  of  several  murders  perpetrated  by 
this  great  criminal,  by  the  same  nefarious  means, 
for  the  purpose  of  obtaining  money  secured  by  frau- 
dulent life  assurances  (y). 

(.r)  C.  C.  C.  1856,  coram  Lord  Campbell,  L.C.J.  See  Sessions  Papers 
for  official  shorthand  minutes  of  evidence,  also  Shorthand  Report. 

iy)  See  Ann.  Reg.  1855  (Chr.),  p.  190.  The  technical  nature  of  the 
evidence  in  Smethurst's  case  (p.  138,  supra)  would  render  it  inappli- 
cable in  illustration  of  legal  principles,  even  if  doubt  had  not  been 
thrown  upon  the  verdict  by  the  grant  of  a  pardon. 


352  PROOF    OF    THE    CORPUS    DELICTI 


Section  5. 

APPLICATION    of    THE     GENERAL     PRINCIPLE    TO    PROOF 
OF    THE    CORPUS    DELICTI    IN    CASES    OF    INFANTICIDE. 

Of  the  various  forms  of  criminal  homicide,  that 
of  Infanticide,  by  which  is  popularly  understood  the 
murder  of  a  recently  born  infant — committed  as  it 
most  frequently  is  for  the  purpose  of  concealing  its 
birth — perhaps  presents  the  greatest  difficulties  in 
the  establishment  of  the  corpus  delicti. 

(i.)  In  addition  to  the  sources  of  difficulty  and 
fallacy  which  are  incidental  to  charges  of  homicide  in 
general,  there  are  many  circumstances  of  embarrass- 
ment peculiar  to  cases  of  this  nature,  amongst  which 
must  be  mentioned  the  occasional  uncertainty  and  in- 
conclusiveness  of  the  symptoms  of  pregnancy  (the 
fundamental  fact  to  be  proved),  which  may  resemble 
and  be  mistaken  for  appearances  caused  by  obstruc- 
tions or  spurious  gravidity  {2).  In  a  remarkable  case 
of  imputed  murder  of  an  adult  female,  the  suspicion 
of  pregnancy  arose  principally  from  the  bulk  of  the 
deceased  while  living,  coupled  with  circumstances  of 
conduct  which  denoted  the  existence  of  an  improper 
familiarity  between  her  and  the  prisoner,  and  from  the 
discovery,  upon  post-Diorteni  examination,  of  what 
was  believed  by  the  witnesses  for  the  prosecution  to 
be  the  placental  mark.  Four  medical  witnesses  ex- 
pressed the  strongest  belief  that  the  deceased  had  been 
recently  delivered  of  a  child  nearly  come  to  maturity  ; 

iz)  Rex  V.  J5<3:/^,  Warwick  Summer  Assizes,  1809,     Rex\.  Ferguson^ 
Burnett's  Criminal  Law  of  Scotland,  p.  574. 


IN    CASES    OF    INFANTICIDE.  353 

while,  on  the  other  hand,  it  was  proved  that  she  had 
been  subject  to  obstructions  ;  and  it  was  deposed 
that  the  appearances  of  the  uterus  might  be  ac- 
counted for  by  hydatids,  and  tliat  what  was  thought 
to  be  the  phicental  mark  might  be  ihe.  pediczi/i  by 
which  they  were  attached  to  the  internal  surface  of 
the  womb  {a).  The  learned  Judge  said  to  the  jury, 
that  it  was  a  very  unfortunate  thing  that  upon  every 
particular  point  they  had  to  rest  upon  conjecture  ; 
that  it  was  a  conjecture  to  a  certain  extent  that  the 
deceased  was  with  child,  that  it  was  conjecture  to  a 
certain  degree  that  any  means  were  used  to  procure 
abortion  ;  and,  if  they  were  used,  that  it  was  con- 
jecture that  the  prisoner  was  privy  to  the  administra- 
tion of  them. 

(2.)  It  must  be  shown  that  a  child  has  been 
born  alive,  and  acquired  an  independent  circula- 
tion and  existence  ;  it  is  not  enough  that  it  has 
breathed  in  the  course  of  its  birth  {b) ;  but  if  a  child 
has  been  wholly  born,  and  is  alive,  and  has  acquired 
an  independent  circulation,  it  is  not  material  that  it 
is  still  connected  with  its  mother  by  the  umbilical 
cord  (<:),  nor  is  it  essential  that  it  should  have  breathed 
at  the  time  it  was  killed,  as  many  children  are  born 
alive  and  yqt  do  not  breathe  for  some  time  after 
birth  {d). 

(a)  Rex  V.  Angus,  Lancaster  Autumn  Assizes,  1808,  coram 
Chambre,  J.,  Shorthand  Report  ;  and  see  Burnett's  Criminal  Law  of 
Scotland,  p.  575. 

{b)  Rex  V.  Poiilton,  5  C.  &  P.  329  ;  Rex  v.  Etioch,  ib.  539  ;  Rex  v. 
Crutchley,  7  ib.  814  ;  Rex  v.  Sellis,  ib.  856  ;  Reg.  v.  Handle^,  13  Cox, 
C.  C.  79- 

{c)  Reg.  V.  Reeves,  9  ib.  25  ;  Reg.  v.  Wright,  ib.  754  ;  Reg.  v.  Trill oe^ 
1  C.  &  M.  650,  {d)  Rex  V,  Braiji,  6  C.  &  V.  349. 

C.E.  A  A 


354  TROOF    OF    THE   CORPUS    DELICTI 

Whether  a  child  has  been  born  alive  or  not  is 
frequently  a  question  of  considerable  difficulty  ;  and  it 
is  an  admonitory  consideration,  that  scientific  tests 
which  have  been  considered  as  infallible,  with  the 
advance  of  knowledge  have  been  found  to  be 
fallacious.  Such  is  the  case  with  respect  to  the 
hydrostatic  test,  from  the  indications  of  which  in 
former  times  many  women  have  suffered  the  last 
penalty  of  the  law.  On  the  trial  of  a  woman  at 
Winchester  spring  assizes,  1835,  it  was  proved  that 
the  lungs  were  inflated,  which  the  medical  "witness 
said  would  not  have  been  the  case  if  the  child  had 
been  still-born  ;  but,  in  answer  to  a  question  from  Mr. 
Baron  Gurney,  he  also  said  that  if  the  child  had 
died  in  the  birth,  thelunors  mi^ht  have  been  inflated, 
upon  which  the  learned  Judge  stopped  the  case  (e).  A 
single  sob,  it  appears,  is  sufficient  to  inflate  the  lungs, 
though  the  child  died  in  the  act  of  birth  (/).  A  young 
woman  was  tried  before  Mr.  Baron  Parke  for  the 
murder  of  her  female  child  ;  the  throat  was  cut,  and 
the  wound  had  divided  the  right  jugular  vein  ;  the 
lunofs  floated  in  water,  and  were  found  on  cuttinof 
them  to  be  inflated  ;  but  it  was  deposed  that  this 
test  only  showed  that  the  child  must  have  breathed, 
and  not  that  it  had  been  born  alive,  and  that  there 
are  instances  of  children  being  lacerated  in  the  throat 
in  the  act  of  delivery.  On  the  close  of  the  case  for 
the  prosecution,  the  learned  Judge  asked  the  jury 
whether  they  were  satisfied  that  the  child  was  born 
alive,  and  that  the  wound  was  inflicted  by  the  prisoner 

(e)  Rex  V.  Simpson,  Cummin  on  the  Proof  of  Infanticide,  40. 
(/)  Rexv.  Davidson,  Hume's  Commentaries  on  the  Criminal  Law  of 
Scotland,  vol.  i.,  p.  292  (note  3). 


IN    CASES    OF    INFANTICIDE.  355 

with  the  Intention  of  destroying  life ;  as,  if  they 
entertained  any  doubt  on  these  points,  it  would  be 
unnecessary  to  go  into  the  evidence  on  behalf  of  the 
prisoner.     The  jury  returned  a  verdict  of  acquittal  {g). 

(3.)  It  Is  a  further  source  of  uncertainty  in  cases 
of  this  nature  that  circumstances  of  presumption 
frequently  adduced  as  indicative  of  the  crime  of 
murder,  may  commonly  be  accounted  for  by  the 
agency  of  less  malignant  motives.  Concealment  of 
pregnancy  and  delivery  may  proceed  even  from 
meritorious  motives  ,  as  where  a  married  woman 
resorted  to  such  concealment  in  order  to  screen  her 
husband,  who  was  a  deserter,  from  discovery  (//). 
The  struggle  between  the  opposing  motives  of 
shame  and  affection  must  be  severe  before  a  mother 
can  contemplate,  and  still  more  so,  before  she  can 
form  and  execute,  the  unnatural  resolution  of  taking 
aw^ay  the  life  of  her  own  offspring.  The  unfortunate 
subject  of  these  conflicting  motives  Is  frequently  the 
victim  of  deceit  and  treachery,  and  is  almost  always 
deserted  by  one  who  was,  if  not  her  seduc  ^r,  at  least  the 
partner  of  her  frailty.  The  world  is  not  lenient  In  such 
cases,  though  scarcely  any  condition  of  human  weak- 
ness can  be  imagflned  more  calculated  to  excite  the 
compassion  of  the  considerate  and  humane  (/').  The 
wisdom  and  humanity  of  the  legislature,  in  accordance 
with  the  spirit  of  the  times,  led,  though  tardily,  to  the 
repeal  {k)  of  the  cruel  rule  of  presumption  created  by 

(g)  Rexw.  Groitnnll,  Worcester  Spring  Assizes,  1837. 

{h)  Rex  V.  Stciuart^  Burnett's  Criininal  Law  of  Scotland,  p.  572. 

(/)  Hume,  see  note  (_/)  supra,  vol.  i.,  p.  291. 

{k)  St.  43  Geo.  III.  c.  58,  s.  3. 

A  A  2 


356  PROOF    OF    THE   CORPUS    DELICTI 

Statute  21  Jac.  I.  c.  27,  and  suggested  by  a  corre- 
sponding edict  of  Henry  II.  of  F" ranee,  which  made 
the  concealment  of  the  birth  of  an  illegitimate  child 
by  its  mother  conclusive  evidence  of  murder,  unless 
she  made  proof  by  one  witness  at  least  that  the 
child  was  born  dead.  The  rule  too  long  survived 
the  age  in  which  it  originated,  and  under  it  many 
women  must  have  unjustly  suffered  [I).  By  the 
repealing  statute  the  endeavour  to  conceal  the  birth 
of  a  child  by  burying,  or  otherwise  secretly  disposing 
of  the  body,  instead  of  being  treated  as  a  conclusive 
presumption  of  murder,  was  made  a  substantive 
misdemeanour  [m). 

(4.)  The  casualties  which,  even  In  favourable  cir- 
cumstances, are  inseparable  from  parturition,  must 
be  greatly  aggravated  by  the  perplexities  in- 
cidental to  illegitimate,  clandestine,  and  unassisted 
birth,  from  the  impulses  of  shame  and  alarm,  the 
desire  of  concealment,  the  want  of  assistance  and 
sympathy,  and  occasionally  from  the  mother's  in- 
ability to  render  the  attentions  requisite  to  preserve 
infant  life ;  and  there  have  been  cases  in  which 
even  the  very  means  resorted  to,  under  the  terror  of 
the  moment,  to  facilitate  birth,  have  been  the  unin- 
tentional cause  of  death.  For  these  reasons,  wounds 
and  other  marks  of  violence  are  not  necessarily 
considered  as  indicative  of  wilful  injury,  and  are  not 
therefore  sufficient  to  warrant  a  conviction  of  murder, 


(/)  Hume,  see  note  (/)  supra,  vol.  i.,  p.  292. 

{m)  See  now  St.  24  &  25  Vict.  c.  100,  s.  60.  See  Russell  on  Crimes 
(6th  ed.),  vol.  iii.,  p.  162,  for  the  history  of  the  legislation  upon  this 
subject. 


IN    CASES    OF    INFANTICIDE  357 

unless  the  concomitant  circumstances  clearly  mani- 
fest that  they  were  knowingly  inflicted  upon  a 
body  born  alive.  Nor  are  these  principles  of  con- 
struction peculiar  to  our  own  law  ;  it  is  believed 
that  they  prevail  generally,  if  not  universally,  in  the 
application  of  the  criminal  law  to  cases  of  this 
nature  (//). 

It  follows  from  these  considerations,  that  though 
the  facts  may  justify  extreme  suspicion  that  death 
has  been  the  result  of  intentional  violence,  yet  if 
they  do  not  entirely  exclude  every  other  hypo- 
thesis by  which  it  may  be  reasonably  accounted 
for,  sound  principles  of  justice,  and  a  proper  regard 
to  the  fallibility  of  human  judgment  in  cases  so 
difficult  as  these  often  are,  combine  to  render  a 
conviction  for  concealment  of  birth  a  safer  result 
than  a  conviction  for  murder.  No  one,  however, 
who  has  seen  much  of  cases  of  this  kind,  can  have 
any  serious  doubt  that  in  many  of  them  there  is  the 
strongest  suspicion  of  murder,  and  one  very  good 
reason  why  concealment  of  birth  should  be  punish- 
able is  that  very  often  the  acts  of  the  mother  have 
rendered  it  impossible  to  ascertain  whether  there 
has  or  has  not  been  foul  play. 

It  has  been  thoucjht  that  in  these  cases  feelincrs 
of  humanity  have  been  permitted  to  bias  the  strict 
course  of  judicial  truth,  and  that  subtle  and  strained 
hypotheses  have  been  used  to  explain  circumstances 
of  conclusive  presumption.     That  this  does   some- 

(«)  Alison's  Principles  of  the  Criminal  Law  of  Scotland,  vol.  L, 
p.  159. 


358  PROOF   OF    THE   CORPUS    DELICTI 

times  happen  cannot  be  denied,  and  if  so,  it  is 
a  proof  that  the  law  is  not  in  harmony  with 
pubHc  feeHng  ;  but  it  may  be  doubted  whether  in 
this  reproach  sufficient  weight  has  always  been 
given  to  the  difficulties  inseparably  incidental  to 
the  proof  of  this  crime.  It  is,  however,  well 
deserving  of  consideration,  whether  the  ends  of 
public  justice  and  social  protection  might  not  be 
better  promoted  by  the  abolition  of  capital  punish- 
ment in  a  class  of  cases  in  which  society  will  not 
concur  in  its  infliction,  and  by  the  substitution  of  a 
minor  punishment,  not  only  in  the  case  of  conceal- 
ment of  birth,  but  generally  in  all  cases  where  death 
has  been  caused  by  the  wilful  omission  of  the  mo;;her 
to  take  the  necessary  means  for  the  preservation  of 
infant  life  (o),  so  as  to  avoid  on  the  one  hand  the 
scandal  and  ill  example  of  acquittals  in  the  face  of 
convincing  evidence  of  guilt,  and  on  the  other,  of 
doing  violence  to  public  feeling  by  capital  convictions 
in  the  case  of  a  crime  which,  bad  as  it  is,  is 
nevertheless  wanting,  as  an  eminent  prelate  has 
remarked,  "  in  all  the  attributes  which  distinguish 
the  murder  of  adults,  viz.  the  wickedness  of  the 
motive,  the  danger  to  the  community,  and  the  feel- 
ing of  alarm  and  insecurity  which  it  occasions  "  (/>). 

(0)  See  Code  Penal  d'Autriche,  prem.  partie,  ch.  xvi.,  art.  122, 
{/>)  Whately  on  Secondary  Punishments,  p.  108,  App.  No.  2  ;  and 
see  Selections  from  the  Charges,  etc.,  of  Mr.  Baron  Alderson,  78. 

It  might  have  been  supposed  that  the  neglect  to  take  any  precaution 
to  preserve  the  life  of  the  infant  would  be  evidence  of  manslaughter ; 
but  the  practical  difficulties  in  the  way  of  obtaining  a  conviction  for 
manslaughter,  under  the  circumstances  in  question,  may  be  said  to  be 
insuperable.  The  neglect  must  be  one  occurring  after  the  child  has 
acquired  its  separate  existence,  that  is,  at  a  time  when  all  the  con- 
siderations in  favour  of  the  accused,  which  are  pointed  out  in  the  text. 


IN    CASES    OF    INFANTICIDE.  359 

The  discussion  and  illustration  of  the  rules  and 
principles  of  evidence,  in  reference  to  the  proof  of 
the  corpus  delicti,  might  be  extended  to  an  examina- 
tion of  their  application  to  other  offences  ;  but  the 
subject  has  been  sufficiently  exemplified  for  the 
purposes  of  this  Essay,  and  such  an  extended 
examination  would  therefore  be  superfluous.  The 
cases  which  have  been  cited  strikingly  exhibit  the 
strict  accordance  between  judicial  practice  and  the 
dictates  of  enlightened  reason. 

operate  with  their  utmost  strength.  It  would  not  seem  unreasonable 
if  the  omission  to  make  any  preparation  for  the  birth  of  a  child,  where 
that  event  is  foreseen,  leading  as  it  constantly  does  to  the  death  of  the 
child,  were  to  be  visited  with  some  minor  punishment 


AMERICAN     NOTES. 

[Note  to  Chapter  VII. ] 

Corpus  Delicti  —  Meanifig  of  the  Term. 

Proof  of  the  corpus  delicti  means  proof  that  the  crime  charged 
has  actually  been  committed  by  some  one.  The  two  principal 
elements  are  the  facts  which  are  the  basis  of  the  charge  and  the 
criminal  agency  in  bringing  those  facts  into  existence.  Best  on 
Evidence,  §  442  ;  Pitts  v.  State,  43  Miss.  472  ;  People  v.  Palmer, 
109  N.  Y.  1 13,  4  Am.  St.  Rep.  477.  In  People  v.  Simonsen,  107 
Cal.  345,  it  is  said  :  "The  term  corpus  delicti  means  exactly  what 
it  says.  It  involves  the  element  of  crime.  Upon  a  charge  of 
homicide,  producing  the  dead  body  does  not  establish  the  corpus 
delicti.     It  would  simply  establish  the  corpus.'' 

Arson  —  What  is  the   Corpus  Delicti  f 

Carlton  v.  People,  150  111.  1S6,  41  Am.  St.  Rep.  346;  State  v. 
Jones,  106  Mo.  302. 

Proof  of  the   Corpus  Delicti. 

Proof  of  the  corpus  delicti  consists  of  proof  of  the  fact  of  death 
and  of  the  means  by  which  death  was  produced.  One  of  these 
being  proved,  the  other  may  be  inferred  from  circumstantial  evi- 
dence. These  circumstances  must  be  wholly  inconsistent  with 
the  defendant's  innocence.  People  v.  Bennett,  49  N.  Y.  137.  But 
compare  Campbell  v.  People,  159  111.  9. 

To  establish  the  corpus  delicti  in  robbery,  it  is  sufficient  to 
show  that  a  person  had  a  sum  of  money  before  the  event,  that  he 
became  intoxicated,  and  was  beaten  into  insensibility,  after  which 
his  money  was  gone.     Bloomer  v.  People,  i  Abb.  Dec.  146. 

Corpus  delicti  must  be  proved  beyond  a  reasonable  doubt. 
Norwood  V.  State,  45  Md.  68. 

The  corpus  delicti  need  not  be  proved  by  "  overwhelming  proof," 
merely  beyond  a  reasonable  doubt.     Zell  v.  Com.,  94  Pa.  258. 


359 '^  AMERICAN   NOTES. 

In  criminal  cases  the  prosecution  must  prove,  first,  that  an 
offence  has  been  committed;  and,  secondly,  that  it  was  committed 
by  the  accused.  U.  S.  v.  Woods,  4  Cranch  C.  C.  484,  Fed.  Cas. 
No.   16760. 

But  although  a  jury  ought  to  be  very  sure  that  a  crime  has  been 
committed  before  convicting  the  accused,  the  evidence  as  a  whole 
may  leave  no  reasonable  doubt  as  to  the  crime  or  its  perpetrator, 
even  though  the  evidence  of  the  death  or  of  any  other  material 
fact  may  be  insufficient  when  taken  alone.  Campbell  v.  People, 
159  111.  9;  State  V.  Williams,  52  N.  C.  446;  Com.  v.  Johnson, 
162  Pa.  63. 

This  is  well  illustrated  in  the  case  of  Com.  v.  Williams,  171 
Mass.  461. 

The  defendant  was  charged  with  the  murder  of  one  Gallo. 
Gallo's  house  was  burned  one  night,  and  Gallo  was  never  again 
seen,  although  he  had  been  in  the  house  in  the  evening  before 
the  fire.  A  body  of  uncertain  sex  was  found  in  the  remains 
of  the  house,  and  the  clasp  of  a  pocket-book  like  Gallo's  near  by. 
The  fire  effectually  concealed  all  indications  of  violence,  if  there 
had  been  any. 

But  very  early  the  next  morning  after  the  fire,  the  defendant  ar- 
rived at  a  town  three  miles  away  in  a  disordered  state  and  stained 
with  blood.  He  told  a  story  of  having  been  robbed  near  a  pond 
which  he  had  passed.  The  vicinity  of  the  pond  showed  no  signs 
of  a  struggle,  but  there  were  tracks  of  a  running  man  from  Gallo's 
house  to  the  pond. 

On  the  day  before  the  fire,  the  defendant  was  penniless  and 
wanting  money  to  go  to  Klondike.  In  telling  of  the  robbery  he 
said  that  he  had  sent  for  seventy-five  dollars  and  was  glad  he  had 
not  received  it.  At  nine  o'clock  on  the  same  morning  he  said 
that  he  had  sent  for  two  hundred  dollars  and  expected  to  hear  be- 
fore Saturday.  At  ten  o'clock  he  produced  a  roll  of  bills,  from 
which  he  took  one  of  five  dollars  and  spent  the  greater  part  of  it. 
On  the  evening  of  the  same  day,  after  telling  different  stories  to 
the  police,  when  about  to  be  searched,  he  produced  a  roll  of  fivQ 
ten  dollar  and  four  five  doUar  bills,  which  at  first  he  said  his  brother 
had  sent  to  him  by  mail,  and  then  declared  that  he  found  by  the 
pond  where  he  was  assaulted  as  he  was  coming  down.  Upon  an 
officer  pressing  him  further,  he  turned  very  white,  perspired,  and 


AMERICAN   NOTES.  359"" 

hardly  could  speak  for  a  time,  but  persisted  that  he  found  the 
money  as  he  said.  Then  the  officers  searched  his  room  and  found 
very  bloody  clothing  and  two  secreted  twenty-dollar  goldpieces,  of 
which  at  first  the  defendant  denied  knowledge,  but  which  after- 
wards he  said  he  found  with  the  rest.  It  appeared  that  Gallo 
had  had  three  twenty-dollar  goldpieces,  and  some  time  before 
had  been  paid  one  hundred  and  nine  dollars  mostly  in  ten  and 
five  dollar  bills.  Gallo  seemingly  had  no  bank  account,  and 
seems  to  have  kept  his  money  as  he  earned  it,  except  the  very 
small  sums  which  he  had  to  spend  for  his  living. 

With  reference  to  the  question  whether  a  crime  had  been  com- 
mitted, it  should  be  added  that  the  kerosene  can  usually  kept 
by  Gallo  in  another  place  was  found  in  the  bedroom,  between  the 
body  and  the  place  of  the  bed  ;  and  although  we  are  not  attempt- 
ing to  state  details,  it  should  be  noticed  as  possibly  significant  that 
the  defendant,  when  told  that  the  Italian's  shanty  was  burned  and 
that  he  was  burned  in  it,  answered,  "  Was  he  all  burned  up  ?  " 

This  evidence  was  held  to  be  sufficient  to  warrant  the  jury  in 
finding  that  beyond  a  reasonable  doubt  Gallo  had  been  murdered 
and  the  defendant  was  guilty  of  the  crime. 

Proof  of  Corpus  Delicti  by  Circmjtstantial  Ei'ideuce. 

Circumstantial  evidence  may  be  used  in  establishing  the  corpus 
delicti,  but  in  such  case  the  certainty  attained  must  be  equal  to 
that  attained  from  direct  evidence.  State  v.  Davidson,  30  Vt.  377, 
73  Am.  Dec.  312  ;  State  v.  Flanagen,  26  W.  Va.  116. 

All  that  is  required  is  that  the  corpus  delicti  be  proved  beyond  a 
reasonable  doubt;  the  kind  of  evidence  is  immaterial.  Anderson 
V.  State,  24  Fla.  139;  State  v.  Keeler,  28  Iowa,  551;  Brown  z/. 
State,  I  Tex.  App.  154  ;  Buel  v.  State,  104  Wis.  132  ;  Campbell 
V.  People,  159  111.  9  ;  Com   r'.  Johnson,  162  Pa.  63. 

In  Reg.  7'.  Mockford,  11  Cox  C.  C.  16,  the  corpus  delicti  was 
established  wholly  by  circumstantial  evidence. 

The  defendant  was  charged  with  stealing  certain  chickens,  and 
was  convicted,  although  the  owner  of  the  chickens  was  unable  to 
identify  the  ones  taken  or  even  to  say  whether  any  of  his  chickens 
were  missing. 

The  same  was  true  in  State  v.  Loveless,  17  Nev.  424.  where  the 
defendant  was  convicted  of  stealing  a  calf. 


359  ^  AMERICAN  NOTES. 

Where  the  deceased  was  found  lying  dead  at  the  foot  of  a  rail- 
road embankment,  it  was  satisfactorily  shown  that  he  was  mur- 
dered, by  the  facts  that  his  wounds  could  not  have  been  made  by 
an  engine,  there  was  a  pool  of  blood  on  the  track  and  traces  of 
dragging  the  body  down  the  embankment,  there  was  a  club  near 
bv  with  which  the  blows  might  have  been  given,  and  the  money 
the  deceased  had  had  was  gone.     Williams  v.  State,  6i  Wis.  281. 

To  show  that  arsenic  which  had  caused  death  was  not  admin- 
istered to  the  deceased  by  a  physician,  he  may  show  that  he 
administered  the  same  medicine  to  others  with  no  ill  eftect.  Epps 
V.  State,  102  Ind.  539. 

Blood  stains  near  the  place  where  a  murder  is  alleged  to  have 
been  committed  and  stains  on  articles  belonging  to  deceased  and 
found  in  possession  of  the  accused  are  evidence  of  the  corpus 
delicti.     Wilson  v,  U.  S.,  162  U.  S.  613. 

The  Fact  of  Death. 

The  fact  of  the  death  of  one  alleged  to  have  been  murdered  by 
the  accused  may  be  established  by  circumstantial  evidence  alone. 
Johnson  v.  Com.,  81  Ky.  325  ;  State  v.  Winner,  17  Kan.  298. 

The  fact  of  the  killing  and  death  may  be  proved  wholly  by  cir- 
cumstantial evidence,  but  the  jury  should  be  warned  to  weigh 
it  with  unusual  ■  care.  The  finding  of  the  corpse  may  not  be 
necessary.  U.  S.  v.  Brown,  Fed.  Cas.  14,  656  a;  U.  S.  v.  Gilbert, 
2  Summ.  19,  Fed.  Cas.  15204;  U.  S.  v.  Matthews,  Fed.  Cas. 
15  741  a  ;   Stocking  v.  State,  7  Ind.  326. 

"  There  is  no  one  dominant  part  of  the  case  which  must  be 
proved  as  directly  as  possible  in  the  nature  of  things  before  evi- 
dence of  a  remoter  kind  is  admissible  to  connect  the  defendant 
with  the  supposed  crime.  No  doubt  the  jury  ought  to  be  very 
sure  that  a  crime  has  been  committed  before  they  convict  a 
person  of  having  committed  it.  But  even  upon  an  indictment 
for  murder,  the  evidence  of  the  death  as  well  as  of  every  other 
material  fact  may  be  insufficient  singly,  and  yet  the  evidence  taken 
as  a  whole  may  leave  no  reasonable  doubt  of  the  crime  or  of  the 
defendant's  guilt.  The  facts  in  a  circle  support  one  another,  when 
if  any  one  were  withdrawn,  they  would  all  fall  to  the  ground." 
Com.  V.  Williams,  171  Mass.  461. 

The  corpus  delicti  is  not  sufficiently  proved  by  the  testimony  of 


AMERICAN   NOTES.  359  ^ 

a  witness  that  the  defendants  tied  himself  and  another,  that  they 
struck  tiiat  other  with  a  sword  on  the  head  and  stabbed  him  in  the 
back  upon  which  he  fell  and  had  never  been  seen  since.  People 
V.  Ah  Fung,  1 6  Cal.  137. 

Where  the  defendant  was  charged  with  the  murder  of  his  illegiti- 
mate child,  newly  born,  the  evidence  showed  that  he  hung  it  in  a 
grain  sack  in  a  tree  where  its  cries  were  heard,  that  afterwards  he 
took  it  away  and  it  was  not  again  seen.  Hdd^  not  sufficient  proof 
that  the  child  was  dead.      People  '-.  Callego,  133  Cal.  295. 

After  the  State  has  ^\\o\w\  p?-i}iia  facie  the  death  of  the  deceased, 
it  requires  the  same  weight  of  evidence  on  the  part  of  the  defence 
to  show  that  the  person  claimed  to  be  deceased  is  still  alive  as  to 
establish  an  alibi.    State  v.  Vincent,  24  Iowa,  570,  95  Am.  Dec.  753. 

See  remarks  of  Chief  Justice  Shaw  in  Cora.  v.  Webster,  5  Cush. 
295,  2)-2>'-  "We  now  come  to  consider  that  ground  of  defence 
on  the  part  of  the  defendant  which  has  been  denominated,  not 
perhaps  witli  precise  legal  accuracy,  an  alibi ;  that  is.  that  the  de- 
ceased was  seen  elsewhere  out  of  the  Medical  College  after  the 
time  when,  by  the  theory  of  the  proof  on  the  part  of  the  prosecu- 
tion, he  is  supposed  to  have  lost  his  life  at  the  Medical  College. 
It  is  like  the  case  of  an  alibi  in  this  respect,  that  it  proposes  to 
prove  a  fact  which  is  repugnant  to  and  inconsistent  with  the  facts 
constituting  the  evidence  on  the  other  side,  so  as  to  control  the 
conclusion,  or  at  least  render  it  doubtful,  and  thus  lay  the  ground 
of  an  acquittal.  And  the  Court  are  of  opinion  that  this  proof  is 
material  ;  for,  although  the  time  alleged  in  tlie  indictment  is  not 
material,  and  an  act  done  at  another  time  would  sustain  it,  yet  in 
point  of  evidence  it  may  become  material ;  and  in  the  present 
case,  as  all  the  circumstances  shown  on  the  other  side,  and  relied 
upon  as  proof,  tend  to  the  conclusion  that  Dr.  Parkman  was  last 
seen  entering  the  Medical  College,  and  that  he  lost  his  life  therein, 
if  at  all,  the  fact  of  his  being  seen  elsewhere  afterwards  would  be 
so  inconsistent  with  that  allegation  that,  if  made  out  by  satisfactory 
proof,  we  think  it  would  be  conclusive  in  favor  of  the  defendant." 

Body  of  Deceased  Need  not  be  Found. 
Where  the  body  of  deceased  cannot  be  found,  because  lost  at 
sea,    other    evidence    may   prove   the   corpus   delicti.     U.    S.   v. 
Williams,  i  Cliff.  5,  Fed.  Cas.  16707. 


359/  AMERICAN   NOTES. 

Where  it  was  claimed  that  the  body  had  been  burned,  it  was 
shown  that  certain  metallic  articles  of  dress  such  as  deceased  had 
sometimes  worn  were  found  in  the  ashes  of  a  fire.  State  v. 
Williams,  52  N.  C  446,  78  Am.  Dec.  248, 

Either  the  body  must  be  found  and  identified,  or  criminal  acts 
must  be  proved  sufficient  to  account  for  death  and  the  absence 
of  the  corpse.     Ruloff  z'.  People,  18  N.  Y.  179. 

To  show  that  the  deceased  came  to  his  death  by  drowning  at 
sea,  the  master  of  the  vessel  from  which  he  was  missed  may  testify 
that  he  saw  no  vessels  for  several  days  before  and  after  the 
deceased  was  missed.     St.  Clair  v.  U.  S.,  154  U.  S.  134. 

Identity  of  the  Body  in  Homicide. 

Where  the  body  of  the  deceased  or  its  identity  has  been  totally 
destroyed  by  fire  or  otherwise,  the  corpus  delicti  may  be  proved 
by  circumstantial  evidence.  State  v.  Williams,  52  N.  C.  446,  78 
Am.  Dec.  248. 

It  may  be  shown  by  any  sort  of  evidence,  if  that  evidence 
establishes  it  beyond  a  reasonable  doubt.  Timmerman  v.  Terr., 
3  Wash.  T.  445,  17  Pac.  624. 

The  evidence  to  identify  a  decomposed  body  with  that  of  the 
murdered  man  was  held  sufficient  where  the  body  corresponded  in 
size,  height,  and  color  of  the  hair,  and  that  the  clothing  was  the 
same  as  that  worn  by  deceased.     State  v.  Downing,   24  Wash. 

340- 

In  McCulloch  v.  State,  48  Ind.  109,  all  that  was  found  of  the 
body  of  the  person  alleged  to  have  been  murdered  was  a  human 
skeleton  of  the  size  and  sex  of  that  individual. 

This  proof  with  circumstantial  evidence  of  the  cause  of  death 
and  of  the  identity  of  the  skeleton  proved  the  corpus  delicti. 

The  father  of  the  deceased  was  allowed  to  testify  that  he  recog- 
nized the  body  from  the  description  given  by  others.  Taylor  v. 
State,  35  Tex.  97. 

Personal  Peculiarities. 

A  skull  identified  by  the  formation  of  the  teeth  and  jaws.  Gray 
V.  Com.,  loi  Pa.  380. 

The  following  circumstances  were  held  sufficient  to  prove  the 
corpus   delicti.     A   negro    boy    disappeared    when    there    was  no 


AMERICAN   NOTES.  339  <f 

known  motive  or  intention  to  leave.  Later  a  headless  trunk  was 
found  in  a  sack,  and  the  severed  legs  were  found  in  anotlier. 
These  were  identified  as  parts  of  the  body  of  the  boy,  by  scars  on 
the  leg,  by  the  color  of  the  skin,  and  the  size.  The  shirt  was  also 
identified.  Tiie  boy's  head  was  never  found.  Lancaster  v.  State, 
91  Tenn.  267. 

In  Lindsay  v.  People,  63  N.  Y.  143,  to  identify  a  decomposed 
body,  evidence  was  given  as  to  similarity  of  color  of  hair  and 
beard,  of  size  and  stature,  and  a  dentist  testified  as  to  missing  and 
mended  teeth. 

Identification  of  Body  by  Articles  of  Property. 

Articles  found  on  a  dead  body  may  be  used  to  identify  it.  State 
V.  Dickson,  78  Mo.  438. 

A  burned  and  mutilated  body  identified  by  the  charred  cloth 
and  a  slate-pencil  once  carried  by  the  deceased.  State  v.  Martin, 
47  S.  C.  67. 

Photographs  to  Identify  Body. 

A  photograph  of  the  deceased  may  be  used  to  identify  the 
body.     Beavers  v.  State,  58  Ind.  530. 

Witness  allowed  to  testify  that  a  mutilated,  discolored  face 
resembled  a  photograph.     Udderzook  v.  Com.,  76  Pa.  340. 

Proof  of  Identity  of  the  Body  May  Be  Necessary. 

Where  a  body  is  found,  and  there  is  great  reason  to  suppose 
that  the  body  would  be  found  if  a  homicide  had  been  done,  there 
can  be  no  conviction  unless  the  body  be  sufficiently  identified. 
People  V.  Wilson,  3  Parker  Cr.  Rep.  199. 

Where  defendant  was  charged  with  murdering  A,  it  was  proved 
that  A  had  disappeared  and  that  a  body  was  found  in  the  river 
six  hundred  miles  down  stream.  The  body  was  not  identified  as 
that  of  A,  and  although  there  was  circumstantial  evidence  that  de- 
fendant was  guilty,  there  could  be  no  conviction.  Walker  v.  State, 
14  Tex.  App.  6og. 

"  The  fact  of  the  identity  of  the  body  of  the  deceased  with  that 
of  the  dead  body,  parts  of  which  were  found  at  the  Medical  Col- 
lege, is  a  material  fact,  necessary  to  be  established  by  the  proof. 
Some  evidence  has  been  offered,  tending  to  show  that  the  shape, 


359^'  AMERICAN   NOTES. 

size,  height,  and  other  particulars  respecting  the  body,  parts  of 
which  were  found  and  put  together,  would  correspond  with  those 
of  the  deceased.  But,  inasmuch  as  these  particulars  would  also 
correspond  with  those  of  many  other  ])crsons  in  the  community, 
the  proof  would  be  equivocal  and  fail  in  the  character  of  conclu- 
siveness upon  the  point  of  identity.  But  other  evidence  was  then 
offered,  respecting  certain  teeth  found  in  the  furnace,  designed  to 
show  that  they  were  the  identical  teeth  prepared  and  fitted  for  Dr. 
Parkman.  Now,  if  this  latter  fact  is  satisfactorily  proved,  and  if 
it  is  further  proved  to  a  reasonable  certainty  that  the  limbs  found 
in  the  vault  and  the  burnt  remains  found  in  the  furnace  were  parts 
of  one  and  the  same  dead  body,  this  would  be  a  coincidence  of  a 
conclusive  nature  to  prove  the  point  sought  to  be  established ; 
namely,  the  fact  of  identity.  Why,  then,  it  may  be  asked,  is  the 
evidence  of  height,  shape,  and  figure  of  the  remains  found  given  at 
all?  The  answer  is,  because  it  is  proof  of  a  fact  not  repugnant  to 
that  of  identity,  but  consistent  with  it,  and  may  tend  to  rebut  any 
presumption  that  the  remains  were  those  of  any  other  ])erson, 
and  therefore,  to  some  extent,  aid  the  proof  of  identification. 
The  conclusion  must  rest  upon  a  basis  of  facts  proved,  and  must 
be  the  fair  and  reasonable  conclusion  from  all  such  facts  taken 
together."     Com.  v.  Webster,  5  Cush.  295,  313. 

Opinion  as  to  Identity. 

A  witness  cannot  give  his  opinion  tliat  a  decomposed  body  is  the 
body  of  the  deceased  in  question,  but  must  give  facts  upon  which 
such  an  opinion  is  to  be  based.  People  v.  Wilson,  3  Parker  Cr. 
Rep.  (N.  Y.)  199. 

Cause  of  Death. 

To  show  the  cause  of  death,  the  state  of  the  health  of  the  de- 
ceased prior  to  his  being  wounded  may  be  shown.  I'hillips  v. 
State,  68  Ala.  469. 

The  character  and  location  of  the  wounds  on  the  body  of  the 
deceased  may  be  proved  to  show  the  cause  of  death.  People  v. 
Wright,  89  Mich.  70;  Basye  v.  State,  45  Neb.  261. 

The  defendant,  charged  with  homicide,  may  show  that  the 
licentiousness  and  drunkenness  of  the  deceased  could  account  for 
her  death,  but  particular  acts  of  drunkenness   cannot  be   shown 


AMERICAN   NOTES.  359  i 

unless  in  some  way  related  to  her  death.  Com.  v.  Ryan,  134 
Mass.  223. 

A  conviction  cannot  be  supported  where  the  circumstances  are 
consistent  with  the  tlieory  of  natural  death.  Dreessen  v.  State,  38 
Neb.  375. 

The  body  of  the  deceased  had  finger  prints  on  the  neck,  bloody 
lips,  a  twisted  arm,  and  the  tongue  was  forward  in  the  mouth. 
Physicians  tesdfied  that  he  had  been  strangled.  This  was  held  to 
be  sufficient  evidence  to  establish  the  corpus  delicti.  Com.  v.  Bell, 
164  Pa.  517. 

Where  the  deceased  lived  nine  months  after  being  wounded, 
and  tlie  cause  of  death  is  doubtful,  the  corpus  delicti  is  not 
established.     Treadwell  v.  State,  16  Tex.  App.  560. 

The  cause  of  death  is  sufficiently  shown  by  proof  that  blows 
were  given  with  a  dangerous  weapon,  that  deceased  became 
insensible,  and  soon  after  died.  U.  S.  v.  Wiliberger,  Fed.  Cas. 
16738. 

Where  a  child  was  thrown  overboard,  the  burden  is  on  the 
prosecution  to  show  that  it  had  not  already  died  in  a  fit.  U.  S. 
V.  Hewson,  Fed.  Cas.  15360.  But  in  U.  S.  v.  Knowles,  Fed.  Cas. 
15540,  4  Sawy.  517,  where  defendant  was  charged  with  foilure  to 
rescue  a  sailor  who  had  fallen  overboard  and  tlie  defence  was  that 
the  sailor  was  dead  from  the  fall,  it  was  held  that  defendant  must 
at  least  raise  a  reasonable  doubt  as  to  the  sailor's  being  alive  when 
he  fell  into  the  water. 

The  defendant  must  be  acquitted  unless  the  State  shows  by  what 
means  the  deceased  came  to  his  death.  Cole  v.  State,  59  Ark.  50. 
But  the  exact  weapon  with  which  death  was  caused  need  not  be 
proved.     State  v.  Cushing,  29  Mo.  215. 

Death  Indirectly   Caused. 

The  assault  of  the  defendant  need  not  have  been  the  immediate 
cause  of  death,  as  where  it  brought  on  pleuro-pneumonia  causing 
death.     Burnett  v.  State,  82  Tenn.  439. 

A  conviction  will  be  sustained  where  death  was  brought  on  by 
fright  caused  by  the  defendant's  violence.  Cox  v.  People,  80 
N.  Y.  500. 

In  Baker  v.  State,  30  Fla.  41,  it  appeared  that  the  deceased  had 
been  on  a  spree  and  had  complained  of  pain  in  his  head.     The 


359/  AMERICAN  NOTES. 

immediate  cause  of  his  dcatli  appeared  to  be  a  blood-clot  on  the 
brain,  but  the  defendant  had  given  him  two  blows  in  the  face  not 
ordinarily  dangerous.  The  doctors  were  in  doubt  as  to  the  cause 
of  the  blood-clot,  but  a  verdict  of  manslaughter  was  sustained. 
So  in  State  v.  O'Brien,  8i  Iowa,  88,  a  conviction  of  manslaughter 
was  sustained  where  the  defendant  had  beaten  and  frightened  the 
deceased,  who  was  afflicted  with  heart  disease  and  who  died 
thirteen  days  later. 

Accident  as  a  Defence. 

The  State  must  prove  criminal  intent  beyond  a  reasonable  doubt, 
and  therefore  it  must  show  beyond  a  reasonable  doubt  that  a 
shooting  was  not  accidental.     State  v.  Cross,  42  W.  Va.  253. 

To  show  that  a  homicide  was  accidental,  the  defendant  may 
show  that  he  carried  his  gun  and  his  money  in  the  same  pocket, 
and  removed  the  one  to  get  at  the  other.  State  v.  Wright  (Iowa), 
84  N.  W.  541. 

Accident  —  Evidence  in  Rebuttal. 

The  theory  of  accident  may  be  rebutted  by  proof  of  Prior 
attempts.     Nicholas  v.  Com.,  91  Va.  741. 

To  rebut  defendant's  claim  that  he  shot  to  frighten  only,  the 
State  may  show  the  severity  of  the  wound,  its  direction,  and  the 
proximity  of  defendant  when  he  fired.  State  v.  Hamilton,  170 
Mo.  377. 

Where  the  defendant  claimed  that  a  shooting  was  accidental 
when  he  was  on  his  hands  and  knees,  it  was  shown  that  the  bullet 
entered  between  the  eighth  and  ninth  ribs  and  ranged  downwards. 
State  V.  Turlington,  102  Mo.  642. 

In  Nicholas  v.  Com.,  91  Va.  741,  where  the  deceased  came  to 
his  death  by  drowning,  the  possibility  of  accident  was  rebutted  by 
the  following  circumstantial  evidence.  The  boat  in  which  the 
defendant  and  deceased  were,  was  found  with  three  newly-bored 
auger  holes  near  the  place  where  defendant  sat,  the  holes  equalling 
in  size  an  auger  possessed  by  the  defendant.  He  was  guilty  of 
illicit  intercourse  with  the  deceased's  wife  both  before  and  after 
the  event.  He  had  predicted  the  sudden  death  of  the  deceased 
from  heart  disease,  and  had  once  attempted  to  poison  him.  He 
had  that  day  induced  the  deceased  to  accompany  him  across  the 
river,  knowing  that  the  deceased  could  not  swim.     He  objected 


AMERICAN  NOTES.  359^ 

to  an  investigation  of  the  occurrence  and  behaved  in  a  suspicious 
manner.      He  was  convicted  of  murder  in  the  first  degree. 

Previous  threats  of  the  defendant  received  to  show  that  the 
homicide  was  not  accidental.     State  v.  Lee,  58  S.  C.  335. 

To  show  that  a  homicide  was  not  accidental,  it  may  be  shown 
that  the  defendant  turned  on  a  witness  of  the  act  and  assaulted 
and  threatened  him.     Snodgrass  v.  Com.,  89  Va.  679. 

Where  the  defendant  is  charged  with  drowning  his  wife  by  up- 
setting a  canoe  and  holding  her  under,  and  he  claims  that  he  was 
trying  to  save  her,  he  may  be  shown  to  have  had  feelings  of 
hostility  toward  her.      Smith  v.  State,  92  Ala.  30. 

In  Makin  v.  Att'y  Gen.,  17  Cox  Cr.  704,  where  the  crime 
charged  was  the  murder  of  an  illegitimate  infant  by  one  who  had 
taken  charge  of  it,  it  was  shown  that  twelve  other  infants  were 
found  buried  at  various  places  where  the  defendant  had  lived,  that 
their  deaths  had  not  been  reported,  and  that  some  of  them  had 
been  received  under  the  same  circumstances  as  had  the  deceased 
in  question  to  show  design  and  to  rebut  a  claim  of  accident. 

Evidence  of  Suicide. 

The  defendant  may  show  the  possibility  or  the  probability  that 
the  wound  causing  death  may  have  been  inflicted  by  the  deceased 
himself.     State  v.  Lee,  65  Conn.  265. 

Where  defendant  alleges  that  the  deceased  committed  suicide 
he  need  not  establish  it  by  a  preponderance  of  the  evidence. 
Persons  v.  State,  90  Tenn.  291. 

The  defendant  may  show  that  the  deceased,  a  pregnant  un- 
married woman,  had  declared  her  intention  to  commit  suicide  on 
the  day  before  her  death.  Com.  v.  Trefethen,  157  Mass.  180,  24 
L.  R.  A.  235.  In  Blackburn  v.  State,  23  Ohio  St.  146.  the  defend- 
ant was  allowed  to  prove  such  declarations,  even  though  they  were 
made  six  years  prior  to  death,  such  remoteness  merely  affecting 
the  weight  of  the  evidence.     But  see  State  v.  Kelly,  77  Conn.  266. 

Suicide  —  Declarations  of  Deceased. 

In  Com.  V.  Trefethen,  157  Mass.  180,  24  L.  R.  A.  235,  where 
the  defendant  was  charged  with  the  murder  of  a  girl  who  was 
pregnant  by  him,  it  was  held  competent  for  the  defendant  to  show 


359  ^  AMERICAN   NOTES. 

that  tlie  deceased  knew  that  she  was  pregnant  and  was  contem- 
plating suicide.  Evidence  was  offered  to  show  that  on  the  day 
before  her  death  the  deceased  called  upon  a  trance  medium  to 
consult  her,  and  in  the  course  of  their  conversation  said  she  was 
going  to  drown  herself.  The  next  day  the  deceased  disappeared, 
and  later  she  was  found  drowned.  It  was  hekl  to  be  error  to  ex- 
clude the  testimony  of  the  medium.  The  existence  of  an  inten- 
tion on  the  2 2d  of  December  is  evidence  that  the  intention  may 
have  existed  on  the  next  day  also,  and  that  the  intention  may  have 
been  carried  out.  Such  evidence  is  not  admissible  when  the  inten- 
tion was  too  remote  in  time  from  the  act,  but  it  was  not  so  here. 

The  Court  says:  "The  burden  was  on  the  Commonwealth  to 
prove  beyond  a  reasonable  doubt  that  the  defendant  killed  the 
deceased,  and  to  do  this  the  jury  must  be  satisfied  beyond  a 
reasonable  doubt  that  she  did  not  kill  herself.  The  nature  of  the 
case  proved  by  the  Commonwealth  was  such,  that  it  was  not 
impossible  that  she  had  committed  suicide.  If  it  could  be  shown 
that  she  actually  had  an  intention  to  commit  suicide,  it  would  be 
more  probable  that  she  did  in  fact  commit  it  than  if  she  had  had 
no  such  intention.  If  it  could  be  shown  that  during  the  week 
before  her  death  she  had  actually  attempted  to  drown  herself  and 
had  been  prevented  from  doing  it,  it  seems  manifest  that  this  fact, 
according  to  the  general  experience  of  mankind,  would  have  some 
tendency  to  show  that  she  might  have  made  a  second  attempt,  and 
accomplished  her  purpose." 

As  to  whetlier  or  not  the  deceased's  declarations  of  her  intention 
were  admissible  to  prove  that  such  an  intention  actually  existed, 
the  Court  says:  "On  principle,  therefore,  we  think  it  clear  that, 
when  evidence  of  the  declarations  of  a  person  is  introduced  solely 
for  the  purpose  of  showing  what  the  state  of  mind  or  intention  of 
that  person  was  at  the  time  the  declarations  were  made,  the 
declarations  are  to  be  regarded  as  acts  from  which  the  state  of 
mind  or  intention  may  be  inferred  in  the  same  manner  as  from 
the  appearance  of  the  person  or  his  behavior,  or  his  actions 
generally.  In  the  present  case,  the  declaration,  evidence  of  which 
was  offered,  contained  nothing  in  the  nature  of  narrative,  and  was 
significant  only  as  showing  the  state  of  mind  or  intention  of  the 
deceased."  See  also  Mutual  Life  Ins.  Co.  v.  Hillmon,  145  U.  S. 
2S5  ;  State  v.  Kelly,  77  Conn.  266. 


AMERICAN  NOTES.  359  ni 

Rebuttal  of  Evidence  of  Suicide. 

In  People  7'.  Hamilton,  137  N.  Y.  531,  where  the  defendant 
was  charged  with  the  murder  of  his  wife,  he  set  up  an  alibi  and 
produced  a  letter  from  his  wife  indicating  her  infidelity  and  that 
she  contemplated  suicide.  But  three  witnesses  positively  testified 
that  he  was  with  his  wife,  near  the  scene  and  at  tlie  time  of  the 
crime.  The  tlieory  of  suicide  was  shown  to  be  untrue  by  the 
manner  in  which  her  throat  was  cut.  A  cuff-button  from  defend- 
ant's clothes,  his  razor,  and  his  cane  were  found  near  the  body. 
He  told  two  different  stories  as  to  her  having  his  cane.  The  letter 
purporting  to  come  from  his  wife  was  shown  not  to  be  in  her  hand- 
writing. The  two  had  not  lived  together  peaceably  and  the  wife 
had  had  defendant  arrested  several  times  for  non-support.  A 
verdict  of  guilty  was  not  set  aside. 

Where  the  death  appears  to  have  been  either  a  homicide  or  a 
suicide  the  State  may  show  the  absence  of  any  motive  for  suicide 
and  tlie  deceased's  station  and  surroundings  in  life.  State  v. 
Lentz,  45  Minn.  177. 

To  rebut  the  theory  of  suicide  evidence  of  experiments  may  be 
introduced  showing  the  effect  of  a  pistol-shot  on  muslin  at  short 
distances.     Sullivan  v.  Com.,  93  Pa.  284. 

To  rebut  the  theory  of  suicide  the  State  may  show  that  when 
last  seen  the  deceased  was  happy  and  in  good  spirits,  by  testi- 
mony of  witnesses  and  by  letters  written  by  her.  State  v.  Bald- 
win, 36  Kan.  I  ;  Morrison  v.  State,  40  Tex.  Crim.  473  ;  Com.  v. 
Trefethen,  157  Mass.  180. 

Instances  of  Sufficient  Proof. 

The  conviction  was  sustained  where  a  body,  partly  burned  and 
cut  to  pieces,  was  found  in  the  defendant's  house,  hair  like  that  of 
the  deceased  was  found  on  a  bloody  axe,  and  clothing  like  that  of 
the  deceased  was  found  in  the  house.  The  defendant  had  been  seen 
burning  meat,  which  he  said  was  pork  rinds,  and  he  made  various 
incriminating  statements.     People  v.  Beckwith,  108  X.  Y.  67. 

If  the  injuries  caused  by  the  defendant  were  sufficient  to  cause 
death,  and  no  other  possible  cause  appears,  the  cause  of  death  is 
sufficiently  established  against  the  defendant.  People  v.  O'Connell, 
78  Hun,  323. 


359  '^  AMERICAN   NOTES. 

Where  the  defendant  struck  the  deceased,  and  the  latter  fell 
dead,  and  later  scalp  wounds  were  found  which  penetrated  the 
skull,  a  verdict  of  guilty  was  not  set  aside,  although  it  was  shown 
that  such  a  wound  seldom  if  ever  causes  instantaneous  death  and 
that  the  post-mortem  examination  had  not  been  a  complete  one. 
State  V.  Lucy,  41  Minn.  60. 

It  is  enough  to  show  that  the  deceased  was  severely  wounded 
with  a  pistol,  and  died  two  days  later,  even  though  no  physician 
testifies  as  to  cause  of  death.  State  v.  Murphy,  9  Nev.  394  ; 
compare  High  v.  State,  26  Tex.  App.  545,  8  Am.  St.  Rep.  488. 

The  commission  of  the  crime  is  sufficiently  proved  when  it 
is  shown  that  the  defendant  fired  a  pistol  at  the  deceased  from 
within  six  inches  of  his  breast,  after  a  careful  aim  ;  that  the  de- 
ceased groaned  and  fell,  and  died  about  five  minutes  thereafter. 
Mitchum  v.  State,  11  Ga.  615;  State  v.  Moody,  7  Wash.  395 
(a  similar  case). 

Where  the  body  of  a  man  who  had  disappeared  while  working 
with  the  defendant  was  afterwards  found  buried  near  the  spot 
where  they  worked  and  was  identified  by  the  clothing,  color  of 
hair  and  beard,  and  the  fact  that  a  certain  tooth  was  missing,  and 
wounds  sufficient  to  cause  death  were  also  shown,  it  was  held  that 
there  was  sufficient  proof  of  the  corpus  delicti.  State  v,  Dickson, 
78  Mo.  438. 

Corpus  delicti  sufficiently  established,  but  defendant  not  suffi- 
ciently identified  as  the  criminal.  State  v.  Crabtree,  170 
Mo.  642. 

Insufficient  Proof  of  Corpus  Delicti. 

Where  the  defendant  was  charged  with  killing  his  partner,  who 
had  disappeared  and  was  last  seen  with  the  defendant,  it  was 
shown  that  the  deceased  drew  five  hundred  dollars  from  the  bank, 
and  later  the  defendant  had  at  least  that  much  money ;  that  there 
was  the  remains  of  a  fire  on  the  defendant's  premises,  in  which  were 
found  a  few  human  bones,  some  buttons,  teeth,  and  a  lock  of  hair  ; 
the  fire  seemed  not  to  have  been  a  very  hot  one  ;  the  lock  of  hair 
was  the  same  color  as  the  hair  of  the  man  who  had  disappeared  ; 
it  was  not  gray,  however,  while  the  hair  of  the  man  was  gray.  It 
was  held  that  the  corpus  delicti  was  not  established.  Gay  v.  State 
(Tex.),  60  S.  W.  771. 


AMERICAN   NOTES.  359  ^ 

Where  one  physician  thought  death  due  to  a  wound  over  the 
eye,  and  others  thought  it  just  as  probable  that  death  was  due  to 
alcoholism,  the  corpus  delicti  is  not  established.  People  v.  Kerrigan, 
84  Hun,  609. 

Where  it  was  shown  that  the  deceased  was  a  drunkard  and  a 
prostitute,  and  that  her  death  from  cerebral  hemorrhage  might 
have  been  caused  by  a  fall  while  climbing  through  a  transom,  or 
by  a  beating  given  by  the  defendant,  a  conviction  was  set  aside. 
McNamee  v.  State,  34  Neb.  288. 

The  cause  of  death  is  not  sufficiently  proved  by  merely  proving 
a  shooting  and  the  fact  that  the  person  shot  is  dead,  where  neither 
the  attending  physician  nor  any  one  present  at  the  death  is  pro- 
duced. High  V.  State,  26  Tex.  App.  545,  8  Am.  St.  Rep.  488  ; 
compare  State  v.  Murphy,  9  Nev.  394. 

In  State  v.  Flanagan,  26  W.  Va.  116,  a  conviction  was  set  aside 
because  the  following  evidence  of  the  corpus  delicti  was  not  suffi- 
cient. The  deceased  woman  was  found  burned  in  her  log  cabin, 
where  she  lived  alone.  The  surrounding  snow  showed  no  tracks. 
The  defendant  had  been  with  the  deceased  the  day  before,  but  not 
that  night,  as  far  as  the  evidence  showed,  and  he  had  no  motive 
for  the  crime.  None  of  deceased's  property  was  found  in  defend- 
ant's possession.  The  fire  might  easily  be  accounted  for  in  other 
ways. 

In  State  v.  Billings,  81  Iowa,  99,  where  defendant  was  charged 
with  homicide,  it  was  shown  that  the  killing  occurred  in  an  office 
after  an  altercation,  with  no  third  person  present,  that  two  shots 
were  heard  closely  following  each  other,  that  defendant  came 
running  out  with  a  bullet  wound  in  his  back,  and  that  de- 
ceased was  found  with  a  pistol  having  two  empty  chambers  near 
his  hand  and  a  wound  in  his  head  that  must  have  been  made  when 
the  revolver  was  within  two  inches  of  his  face.  These  circum- 
stances were  held  not  sufficient  to  sustain  a  conviction  for  a 
crime. 

The  corpus  delicti  was  held  to  be  insufficiently  proved  on  the 
following  evidence.  The  man  alleged  to  have  been  killed  left  in 
company  with  the  defendant  on  October  25.  On  the  25th  of  No- 
vember succeeding,  a  body  was  found  in  a  creek.  Clothing  on  the 
body  was  said  by  witnesses  to  belong  to  the  man  who  had  disap- 
peared.    He  had  had  a  considerable  sum  of  money,  and  the  defend- 


359/^  AMERICAN   NOTES. 

ant  knew  it.  The  defendant  was  later  found  in  possession  of  the 
horse  tliat  tlic  man  had  ridden  away.  Physicians  testified,  on  the 
other  hand,  that  the  body  was  so  decomposed  as  to  have  required 
from  three  to  five  months.  One  witness  swore  that  the  clothing  on 
the  body  had  never  belonged  to  tlie  man,  and  another  testified 
that  the  parties  had  traded  horses.  When  the  man  left  he 
expressed  the  intention  of  not  returning.  Monk  v.  State,  27  Tex. 
App.  450. 

Corroboration  of  Confession  Reqtiired. 

The  uncorroborated  extrajudicial  confession  of  the  defendant  is 
not  sufficient  evidence  of  the  corpus  delicti  in  homicide.  State  v. 
German,  54  Mo.  526,  14  Am.  Rep.  481  ;  Bartley  v.  People,  156 
111.  234  ;  Heard  v.  State,  59  Miss.  545. 

In  Paul  V.  State,  65  Ga.  152,  the  confession  of  the  defendant 
was  corroborated  by  proof  of  the  corpus  delicti  as  follows :  Near  a 
spring  where  he  said  he  had  switched  the  deceased  girl  were 
found  switches  with  evidences  of  use,  a  broken  rail  with  blood  on 
it,  and  the  body  of  the  girl  with  a  fractured  skull. 

A  confession  of  the  defendant  that  he  had  killed  his  three  months' 
old  child  was  held  to  be  sufficiently  corroborated  by  the  following 
proof  of  the  corpus  delicti.  Where  defendant  said  he  had  buried 
the  child,  the  ground  was  found  scratched  up,  and  scattered  about 
were  bits  of  small  bones,  locks  of  hair  like  that  of  the  child,  and 
some  pieces  of  clothing  that  were  fairly  well  identified.  Under  the 
Texas  statute,  a  conviction  cannot  be  had  upon  a  confession 
merely,  unless  the  body  or  portions  of  it  be  found  and  identified. 
Jackson  v.  State,  29  Tex.  App.  458,  16  S.  W.  247. 

Where  the  defendant  had  told  a  witness  that  he  hit  the  deceased 
on  the  head  and  killed  him,  and  a  physician  testifies  that  wounds 
on  the  head  might  have  caused  death,  the  proof  is  sufficient. 
Custis  V.  Com.,  87  Va.  589. 

The  fact  that  a  murder  has  been  done  is  proved  sufficiently  to 
permit  the  introduction  of  the  defendant's  confession,  when  it  is 
shown  that  the  deceased  disappeared  without  reason,  that  defend- 
ant was  near  at  hand  and  had  threatened  her  life,  that  a  skull 
and  jaw  bone  were  found  in  a  stream  near  by  and  identified  as 
those  of  the  deceased  by  a  lock  of  hair  still  attached  and  the  shape 
of  the  jaw.     Gray  v.  Com.,  loi  Pa.  380, 


AMERICAN   NOTES.  359  ^ 

Same  Evidence  to  Prove  Corpus  Delicti  afid  Guilt. 

The  very  same  evidence  which  establishes  the  corpus  delicti  may 
also  establish  the  fact  that  the  defendant  committed  the  crime. 
See  Com.  v.  Williams,  171  Mass.  461  ;  Com.  v.  Johnson,  162  Pa. 
63  ;  Gannon  v.  People,  127  111.  507. 

In  Com.  V.  Johnson,  162  Pa.  63,  the  defendant  was  shown  to 
have  driven  away  in  a  buggy  with  his  four  year  old  child.  He  said 
he  was  taking  her  home.  He  was  shiftless  and  had  refused  to 
support  his  child,  but  his  wife  had  left  the  child  with  him.  He 
came  back  without  the  child,  and  the  next  day  her  hat  was  found 
near  the  river,  and  later  the  child's  body  was  found  in  the  river. 
Defendant  gave  contradictory  and  false  accounts  of  what  he  had 
done  with  the  child,  and  he  was  convicted. 

In  Gannon  7'.  People,  127  111.  507,  11  Am.  St.  Rep.  147,  the 
proof  of  the  corpus  delicti  was  as  follows  :  The  defendant  and  his 
six  year  old  stepson  went  fishing  one  April  morning  when  there 
was  still  snow  on  the  ground.  At  noon  the  defendant  returned 
alone,  saying  that  the  boy  was  to  follow  with  a  shovel.  Later  the 
defendant  and  another  went  to  look  for  the  boy  and  they  found 
all  his  clothing  on  the  bank  and  his  dead  body  naked  in  the 
stream.  From  the  clothing  to  the  water  the  ground  was  soft,  and 
there  were  the  tracks  of  a  man,  but  no  marks  of  a  boy's  bare  feet. 
At  the  edge  of  the  water  were  prints  of  the  boy's  fingers  as  if  he 
had  been  trying  to  crawl  out.  There  were  some  marks  of  violence 
on  the  body.  The  defendant  showed  grief  at  the  boy's  death, 
but  he  also  showed  that  he  expected  to  be  accused  of  the  murder. 
He  had  previously  been  cruel  to  the  boy.  After  the  arrest  he 
made  two  desperate  escapes.     He  was  convicted. 

Proof  of  Defendant's   Guilt  —  Illustrative  Homicide  Cases. 

The  State  need  not  prove  the  exact  weapon  with  which  death 
was  caused.     State  v.  Gushing,  29  Mo.  215. 

In  the  case  of  Cicely  v.  State,  13  Smedes  and  M.  (Miss.)  203, 
the  defendant,  a  slave,  was  accused  of  the  murder  of  Dr.  and  Mrs. 
Longon  and  two  children  with  a  broadaxe.  The  following  is 
from  the  opinion  at  page   218: 

"  From  this  statement  of  the  testimony,  the  facts  which  militate 
against  the  accused,  and  lead  to  the  conclusion  of  her  guilt,  are : 


359  ''  AMERICAN   NOTES. 

"  I.  Her  presence  at  the  commission  of  the  homicide,  and  the 
perfect  means  which  were  at  her  command  for  the  accomplishment 
of  her  object. 

"  2.  The  fact  that  from  the  door  of  the  house,  in  the  walk,  to  the 
spot  where  the  corpse  of  Mrs.  Longon  was  found,  during  the  night, 
after  cautious  and  careful  examination,  there  were  discovered  but 
two  sets  of  tracks  or  '  footprints,'  one  of  which  was  supposed  to  be 
those  of  the  deceased,  and  the  other  corresponded  with  those  of 
the  accused. 

"3.  The  fact  that  at  the  place  where  the  homicide  was  com- 
mitted the  traces  of  a  scuffle  were  visible,  and  the  prints  of  feet 
were  discovered  which  corresponded  witli  the  tracks  of  the  accused. 

"4.  The  fact  that  from  the  point  at  which  the  corpse  was  found 
to  the  gate,  there  was  found  but  one  set  of  tracks,  and  they  cor- 
responded with  those  of  the  accused. 

"  5.  The  prisoner's  declining  to  advance  into  the  light  at  Brown's, 
where  the  witness  Perry  was  standing  with  others,  and  her  retreat 
into  a  dark  corner. 

"  6.  The  statement  prisoner  made  to  witness,  James  E.  Watts,  in 
the  road  between  Longon's  and  Brown's,  before  any  suspicion  of 
her  agency  in  the  murder  had  arisen  in  the  mind  of  the  witness. 
She  stated  that  after  the  robbers  had  killed  Longon  and  his  family, 
Mrs.  Longon  and  herself  ran  out  of  the  house,  and  were  pursued 
by  the  robbers,  who  overtook  Mrs.  Longon  and  killed  her  where 
she  lay  ;  but  that  she  outran  Mrs.  Longon,  and  escaped,  and  ran 
over  to  Brown's. 

"  7.  The  stains  of  blood  upon  the  front  of  her  dress.  Witness 
says,  '  There  were  many  specks  and  spots  on  it.' 

*'  8.  The  blood  stain  upon  the  pantaloon  pocket  of  Longon, 
coupled  with  her  possession  of  his  purse,  secreted,  and  her  igno- 
rance of  the  amount  of  its  contents. 

"9.  The  improbable  version  she  gave  of  the  whole  transaction, 
and  her  palpably  contradictory  statements." 

In  Richardson's  "  Medical  Microscopy,"  295,  is  given  the  following 
account  of  the  conviction  of  a  woman  of  cutting  her  child's  throat : 
"Upon  being  searched,  there  was  found  in  the  woman's  possession 
a  large  and  sharp  knife,  which  was  at  once  subjected  to  a  minute 
and  careful  examination.  Nothing,  however,  was  found  upo'i  it, 
with  the  exception  of  a  few  pieces  of  hair  adhering  to  the  handle, 


AMERICAN   NOTES.  359  •$" 

?o  exceedingly  small  as  scarcely  to  be  visible.  The  examination 
being  conducted  in  the  presence  of  the  prisoner  and  the  officer 
remarking,  '  Here  is  a  piece  of  fur  or  hair  on  the  handle  of  your 
knife,'  the  woman  immediately  rei)licd,  'Yes,  I  dare  say  there  is, 
and  very  likely  some  stains  of  blood,  for,  as  I  came  home,  I  found 
a  rabbit  caught  in  a  snare,  and  I  cut  its  throat  with  a  knife.'  The 
knife  was  sent  to  London,  and  with  the  particles  of  hair,  subjected 
to  a  microscopic  examination.  No  trace  of  blood  could  at  first 
be  detected  upon  the  weapon,  which  appeared  to  have  been 
washed  ;  but  ui)on  separating  the  horn  handle  from  its  iron  lining, 
it  was  found  that  between  the  two  a  fluid  had  penetrated  which 
turned  out  to  be  blood  — certainly  not  the  blood  of  a  rabbit,  but 
bearing  every  resemblance  to  that  of  the  human  body.  The  hair 
was  then  submitted  to  examination.  Without  knowing  anything 
of  the  facts  of  the  case,  the  microscopist  immediately  declared  the 
hair  to  be  the  hair  of  a  squirrel.  Now,  round  the  neck  of  the 
child  at  the  time  of  the  murder,  there  was  a  tippet  or  '  victorine,' 
over  which  the  knife,  by  whomever  held,  must  have  glided,  and 
this  victorine  was  of  squirrel's  fur. 

"This  strong  circumstantial  evidence  of  the  guilt  of  the  prisoner 
was  deemed  by  the  jury  sufficient  for  a  conviction,  and  whilst 
awaiting  execution,  the  wretched  woman  fully  confessed  her  crime." 

"  In  McCann  v.  State,  13  Smedes  &  M.  (Miss.)  471,  the  body  of 
the  deceased  was  found  partly  eaten  by  hogs,  but  was  identified 
by  the  clothing  and  the  bones  of  his  foot.  The  manner  in  which 
the  murder  was  done  is  shown  as  follows  : 

"It  is  almost  certain  that  the  murder  was  committed  with  a 
pistol;  the  smoke  and  powder  upon  the  surface  and  edges  of  the 
wound,  and  upon  the  hat,  show  that  it  was  fired  in  immediate 
contact  widi  the  person.  The  blood  upon  the  right  stirrup  leather, 
which  was  the  side  next  the  woods,  connected  with  the  impression 
upon  the  tree,  goes  to  show  that  he  was  shot  upon  his  horse,  and 
the  range  of  the  ball  likewise  shows  that  the  person  who  fired  was 
on  horseback.  The  impression  of  the  ball  upon  the  side  of  the 
tree  next  the  road,  and  the  finding  of  the  flattened  ball  at  the 
foot  of  the  tree,  prove  that  the  shot  did  not  proceed  from  a  per- 
son concealed  in  the  woods.  It  is  very  certain  that  the  ball  could 
not  have  killed  him  after  it  struck  the  tree  and  fell  upon  the 
ground.     It  is  a  fair  conclusion,  then,  that  the  pistol  was  fired  by 


359  ^  AMERICAN   NOTES. 

some  one  on  horseback  in  the  road  very  near  to  the  decedent,  who 
was  higher  than  the  deceased  bending  forward  on  his  small  horse, 
and  that  the  ball  entered  the  neck,  passed  through  the  lower  part 
of  the  head,  and  came  out  on  the  right  side,  detaching  a  portion 
of  the  bone,  and  having  nearly  spent  its  force,  struck  the  tree  and 
fell  at  its  foot.  As  it  was  after  night,  the  murderer  had  to  be  near 
his  victim  to  be  sure  of  his  aim.  It  will  be  remembered  that  the 
prisoner  rode  a  good-sized  horse,  and  if  he  perpetrated  the  deed 
from  his  saddle,  was  elevated  enough  above  the  decedent  to  give 
the  ball  the  direction  it  took.  Soon  after  the  report  of  the  gun, 
the  rapid  galloping  of  a  horse  was  heard,  going  from  the  direction 
of  the  place  of  the  murder  towards  the  house  of  old  Mr.  McCann  ; 
a  rider  was  seen  upon  him,  and  he  took  an  unfrequented  bypath 
through  the  woods,  which  led  in  a  more  direct  course  to  the  house 
than  the  road.  It  is  not  shown  that  any  one  else  went  to  the 
house  that  night."  McCann  v.  State,  13  Smedes  &  M.  (Miss.) 
471,  494. 

Trial  of  John   C.    Coif. 

One  of  the  most  dreadful  trials  in  the  history  of  criminal  juris- 
prudence was  that  of  John  C.  Colt  in  New  York  in  the  year  1841, 
reported  in  full  in  "  Remarkable  Trials  "  at  page  226. 

Colt  was  the  brother  of  Col.  Samuel  Colt,  the  revolver  manufac- 
turer. He  had  an  altercation  in  his  own  office  with  one  Samuel 
Adams,  a  printer,  over  a  printing  account,  and  killed  Adams  there 
with  a  hatchet.  No  one  saw  the  act,  but  the  suspicion  of  others 
in  an  adjoining  room  was  aroused  by  the  noises.  Colt,  after  the 
evidence  of  the  prosecution  was  all  in,  admitted  that  he  killed 
Adams,  but  claimed  that  he  did  the  deed  in  self-defence. 

After  killing  Adams,  Colt  locked  himself  in  the  room,  where  he 
remained  until  dark.  That  night  he  boxed  up  the  body  of  Adams 
and  washed  up  the  blood  stains,  throwing  ink  about  to  further 
conceal  the  traces  of  the  blood.  He  addressed  the  box  to  a  per- 
son in  St.  Louis,  and  the  next  morning  had  it  carted  on  board 
the  vessel  Kalamazoo,  bound  for  New  Orleans.  The  absence  of 
Adams  and  the  suspicion  of  Colt  led  to  the  recovery  of  the  body 
before  the  sailing  of  the  vessel. 

When  Colt  was  first  asked  about  the  noise  in  his  room  on  the 
previous  afternoon,  he  asserted  that  he  had  not  been  in  his  room 


AMERICAN   NOTES.  359  ?/ 

at  all  that  afternoon.  The  second  time  he  was  questioned  by  the 
same  party,  he  replied  :  "  To  tell  you  the  truth,  Mr.  Wlieeler,  I 
upset  my  table,  spilt  my  ink,  and  knocked  down  the  books,  making 
a  deuced  muss." 

When  the  body  was  discovered,  it  was  much  decomposed,  but 
it  was  identified  by  the  clothing  and  by  a  ring  worn  by  Mr.  Adams. 
His  watch  and  watch  key  were  found  in  Colt's  trunk  at  liome. 

To  determine  the  cause  of  death  and  to  show  also  that  many  of 
the  blows  could  not  have  been  given  in  self-defence,  the  skull  of 
the  murdered  man  himself  was  exhumed  and  produced  in  court. 
This  certainly  must  be  a  very  unusual  proceeding.  That  it  should 
be  of  doubtful  propriety,  unless  absolutely  necessary,  would  be  in- 
dicated by  the  following  excerpt : 

"  The  skull  was  then  handed  to  Dr.  Rogers  by  the  coroner  and 
exhibited  to  the  jury.  Never  was  there  a  more  thrilling  siglit. 
The  court-room  was  crowded  to  excess,  and  the  head  was  held 
up  in  his  fingers  by  Dr.  Rogers.  He  placed  the  corner  of  the  axe 
in  the  hole  over  the  left  ear,  which  precisely  fitted  it.  He  then 
put  the  hammer  part  in  the  fracture  or  indentation  on  the  other 
side,  which  joined  in  it  fairly  as  a  mould.  He  then  explained  the 
wounds  in  front.      It  was,  indeed,  a  dreadful  sight. 

"Colt  held  his  hands  over  his  eyes  while  the  examination  was 
going  on. 

"  The  jaw-bone  was  also  produced,  which  was  broken  in  halves. 
Dr.  Archer  went  on  to  explain  the  nature  of  the  wounds,  and  the 
head  was  minutely  examined  by  the  jurors." 

Evidence  was  given  indicating  that  any  one  of  the  blows,  whose 
effects  were  shown,  would  have  rendered  Mr.  Adams  hors  de  com- 
bat, and  therefore  indicating  also  that  the  blows  had  been  given 
viciously  and  not  in  self-defence.  But  physicians  testified  for  the 
defence  that  a  man  might  continue  to  fight  after  receiving  a  fatal 
blow  on  the  head,  and  counsel  argued  that  "  General  Hamilton, 
on  being  shot,  sprung  from  the  ground  before  he  fell ;  and  young 
Austin,  after  he  had  been  sliot  in  tlie  head,  advanced  upon  Selfridge, 
and  struck  him  some  violent  blows  before  he  fell  dead." 

The  reporter  modestly  adds  tliat  "  previous  to  this  thrilling  ex- 
amination, all  the  ladies  in  court  had  retired." 

The  report  is  notable  also  for  the  full  confession  of  Colt,  given 
to  the  jury  by  on'^  of  the  attorneys.     It  admitted  the  killing,  but 


359  ^  AMERICAN   NOTES. 

described  a  struggle  with  the  deceased  in  which  the  deceased  was 
choking  the  defendant.  This  confession  could  not  but  have  in- 
jured the  case  of  the  defendant,  for  in  it  he  enumerated  all  the 
horrid  and  gruesome  details  of  how  he  struck  the  blows,  how  he 
bent  and  tied  up  the  body,  how  he  nailed  the  box  and  had  it 
taken  to  the  ship,  and  how  he  later  washed  up  the  traces  of  the 
blood.  The  confession  gives  almost  a  worse  imjjression  of  the 
defendant  and  his  case  than  did  the  evidence  of  the  prosecution. 

The  case  was  conducted  with  unusual  bitterness  between  the 
district  attorney,  Mr.  Whiting,  and  the  attorneys  for  the  defendant, 
Robert  Emmctt  and  Mr.  Selden. 

After  consitierable  deliberation,  the  jury  brought  in  a  verdict  of 
murder  in  the  first  degree.  On  being  sentenced  Colt  made  some 
remarks,  e.\hibiting  what  the  Court  then  characterized  as  "  callous 
and  morbid  insensibility."  The  defendant  was  sentenced  to  be 
hanged. 

Several  desperate  efforts  were  made  to  assist  Colt  to  escape,  and 
a  doctor  even  agreed  to  attempt  Colt's  resuscitation  after  he  should 
be  cut  down.  On  the  day  fixed  for  his  execution  he  was  married 
to  Caroline  Henshaw,  with  whom  he  had  lived  as  husband  and 
wife,  and  who  had  borne  him  a  son.  A  few  moments  before  he 
was  to  be  brought  forth  from  his  cell,  he  committed  suicide  with 
a  knife  that  had  been  secretly  handed  to  him.  At  the  same  mo- 
ment the  cupola  of  the  Tombs  was  found  to  be  in  flames. 

The  Trial  of  Professor  John    W.    Webster. 

Probably  the  most  celebrated  case  in  the  criminal  annals  of  the 
United  States  is  the  case  wherein  Prof.  John  W.  Webster,  of  the 
Harvard  Medical  College,  was  tried  for  the  murder  of  Dr.  George 
Parkman  of  Boston.  It  is  celebrated  not  only  for  the  standing 
and  connection  of  the  parties  affected,  but  for  the  circumstances 
of  the  murder  and  of  the  concealment  and  discovery  of  the  body, 
and  for  the  learning  and  ability  with  which  the  case  was  argued 
and  decided. 

Lemuel  Shaw,  the  great  Chief  Justice  of  Massachusetts,  presided, 
assisted  by  Judges  Wilde,  Dewey,  and  Metcalf.  The  Attorney 
General,  John  H.  Clifford,  assisted  by  George  Bemis,  conducted 
the  prosecution ;  Pliny  Merrick  and  Edward  D.  Sohier,  the 
defence. 


AMERICAN   NOTES.  359  W 

It  is  a  case  also  where  both  the  corpus  delicti  and  the  guilt  of 
the  defendant  were  almost  established  by  circumstantial  evidence, 
and  the  rulings  of  the  Court  are  of  unusual  importance  and  have 
been  quoted  liberally  throughout  this  work. 

On  November  23,  1849,  Dr.  George  Parkman  disappeared  from 
his  home.  He  was  a  strict  and  punctual  man,  and  his  family 
were  alarmed  merely  by  his  failure  to  appear  at  dinner.  The  fol- 
lowing day  search  was  begun  and  rewards  were  offered,  the  entire 
police  force  of  Boston  and  many  friends  of  Dr.  Parkman  engaging 
in  the  search. 

With  considerable  difficulty  his  course  on  the  fatal  day  was 
traced  to  tiie  Harvard  Medical  College,  and  beyond  that  he  could 
not  be  traced.  A  superficial  search  was  made  at  the  college 
building,  but  nothing  was  found,  and  no  serious  suspicion  at  first 
attached  to  Professor  Webster. 

Gradually,  however,  such  suspicion  centred  on  him.  It  was 
shown  that  he  had  long  owed  Dr.  Parkman  a  debt  which  he  was 
unable  to  pay,  that  he  had  secured  payment  of  the  sum  due  by 
a  mortgage  on  a  mineral  collection,  and  that  he  had  later  given  a 
bill  of  sale  of  those  very  minerals  to  another  man.  Dr.  Parkman 
had  learned  of  this,  regarded  Webster's  action  as  contemptibly 
dishonorable,  and  told  him  so.  On  this  day  he  had  gone  with 
Professor  Webster's  notes  to  demand  payment  once  more,  and 
this  time  expecting  to  be  paid. 

After  their  disappearance,  Professor  Webster  asserted  that  he  had 
paid  Dr.  Parkman  in  full,  the  sum  being  nearly  $500.00,  and  he 
produced  the  note,  cancelled  merely  with  the  stroke  of  a  pen.  yet 
he  was  unable  to  account  for  where  he  had  obtained  the  money 
with  which  to  pay  the  note,  and  all  the  money  that  he  actually 
had  received  recently  was  shown  to  have  gone  elsewhere. 

The  janitor  of  the  Medical  College  especially  became  suspicious, 
and  began  a  search  on  his  own  account.  He  knew  that  for  the 
greater  part  of  several  davs  after  the  disappearance  of  Dr.  Park- 
man,  including  a  Sunday,  Professor  Webster  had  been  busy  working 
in  his  laboratory,  with  the  doors  locked  —  an  unusual  occurrence. 
A  hot  fire  had  been  kept  in  an  assay  furnace  not  often  used,  and 
water  had  been  running  at  unusual  hours.  Further,  Professor  Web- 
ster's appearance  had  seemed  strange  to  him,  and  Webster  had 
presented  him  with  a  Thanksgiving  turkey  —  an  unprecedented 
occurrence. 


359 -t'  AMERICAN   NOTES. 

At  last  the  janitor  decided  to  dig  from  the  outside  through  tlie 
wall  of  a  private  privy  in  Professor  Webster's  laboratory,  since  he 
could  not  investigate  the  privy  from  the  inside.  Professor  Webster 
had  by  artifice  kept  the  searchers  away  from  it.  In  that  privy  the 
janitor  found  portions  of  human  legs.  Immediately,  Professor 
Webster  was  arrested,  and  a  thorough  search  of  the  premises  was 
made.  In  a  tea-chest,  well  covered  over,  was  found  the  trunk  of 
a  man.  In  the  ashes  of  the  assay  furnace  were  found  the  remains 
of  some  artificial  teeth  and  numbers  of  bones.  'i"he  head  had  ap- 
parently been  wholly  consumed,  for  no  other  traces  were  found 
of  it. 

That  these  scattered  remains  were  portions  of  Dr.  Parkman's 
body  soon  became  clear.  In  the  first  place  the  other  members 
of  the  medical  faculty,  one  of  whom  was  Oliver  Wendell  Holmes, 
were  able  to  account  for  every  cadaver  that  tlie  college  had  re- 
ceived, and  they  had  no  record  of  this  body.  Next,  a  careful  study 
of  the  remains  was  made  by  several  medical  men  of  high  stand- 
ing, a  complete  catalogue  of  the  various  bones  and  pordons  found 
was  made,  and  in  no  case  was  any  portion  duplicated.  That  was 
almost  proof  positive  that  all  the  pieces  had  belonged  to  one  body. 
Further,  the  hair  on  the  trunk  was  like  that  of  Dr.  Parkman,  the 
skin  was  that  of  a  man  of  about  sixty  (his  age),  and  the  legs  were 
well  muscled  out  of  proportion  (Dr.  Parkman  had  been  a  great 
walker).  The  friends  of  Dr.  Parkman  were  unable  to  identify  the 
remains  positively,  but  all  doubt  was  cleared  up  by  the  testimony 
of  a  certain  dentist  who  had  made  the  set  of  artificial  teeth. 
The  recent  death  of  this  dentist  has  just  been  noticed  by  the 
newspapers,  fifty-five  years  later,  and  the  memories  of  the  famous 
case  recalled.  The  teeth  had  come  out  of  the  fire  in  fair  con- 
dition, and  still  bore  marks  by  which  the  dentist  positively  iden- 
tified them  as  the  same  that  he  had  made  and  fitted  for  Dr.  Park- 
man.  The  Doctor's  mouth  had  been  of  very  peculiar  shape, 
and  he  had  ordered  the  teeth  to  be  made  for  a  special  occasion 
in  a  hurry,  the  dentist  working  at  them  all  through  one  night ; 
so  there  was  reason  for  the  dentist's  clear  remembrance. 

When  Professor  Webster  was  first  arrested  he  was  very  much 
affected.  He  became  so  ill  he  could  not  stand,  became  almost 
hysterical,  and  at  one  time  bit  at  a  glass  given  him  with  water  to 
drink.  Yet  later  he  recovered  his  composure  and  bore  himself 
well  through  the  trial. 


AMERICAN   NOTES.  359  ^^ 

In  the  same  vault  where  the  legs  were  found  were  also  some 
towels  marked  with  Webster's  name  and  stained  with  blood. 
Spots  were  found  on  some  of  his  clothing. 

It  was  shown  that  the  chief  of  police  had  received  certain  let- 
ters, while  the  search  was  being  prosecuted,  the  purpose  of  which 
was  very  evidently  to  direct  the  search  into  other  places  than  the 
college.  These  letters  were  unsigned,  but  were  shown  to  be  in 
Webster's  handwriting.  They  had  been  written  not  with  a  pen 
and  not  with  a  brush,  but  with  a  swab.  A  stick  with  a  wad  of 
cotton  on  one  end  was  found  in  the  laboratory.  It  had  been 
dipped  in  ink,  and  might  have  been  used  for  writing  the  letters. 

Some  of  the  pliysicians  testified  that  the  body  had  been  dis- 
membered with  professional  skill;  particularly  was  this  true  of  the 
removal  of  the  sternum  from  the  trunk.  Professor  Webster  had 
the  skill  and  experience  necessary. 

While  in  the  jail  Professor  Webster  wrote  a  letter  to  his  daughter, 
containing  one  little  suspicious  remark  :  "Tell  mamma  not  to  open 
the  little  bundle  I  gave  her  the  other  day,  but  to  keep  it  just  as 
she  received  it."  This  bundle  was  found  to  be  some  accounts 
with  reference  to  the  Parkraan  debt. 

The  defence  was  attempted  along  three  lines  :  First,  that  Dr. 
Parkman  was  seen  in  Boston  after  leaving  the  Medical  College. 
As  to  this  there  was  a  little  very  weak  evidence.  Second,  the 
general  unreliability  of  circumstantial  evidence.  And  third,  the 
previous  good  character  of  Professor  Webster,  and  his  natural 
conduct  during  the  search  for  Dr.  Parkman  and  up  to  the  time 
of  being  arrested.  Twenty-seven  prominent  citizens,  including 
John  G.  Palfrey  and  Jared  Sparks,  the  president  of  Harvard,  were 
introduced  to  testify  of  the  defendant's  good  character.  The  pros- 
ecution did  not  attempt  to  dispute  it. 

But  the  net  of  circumstantial  evidence  was  so  tightly  drawn  that 
there  was  no  escape  from  it.  Everything  pointed  to  Webster  as 
the  guilty  man.  There  was  no  reasonable  doubt,  either  as  to 
Parkman's  felonious  killing  or  as  to  the  agency  of  the  defendant 
therein.  Professor  Webster  was  found  guilty  of  murder  and  sen- 
tenced to  be  hanged. 

The  means  by  which  the  murder  was  done  were  never  proved. 
See  Stone's  Report  and  Bemis's  Report. 


359-  AMERICAN   NOTES. 


Poisofiinz  Cases. 


Cause  of  Death.  —  Circumstantial  evidence  may  be  sufficient 
to  establish  tlie  eorpus  delieti  wliere  the  death  was  caused  by 
poison.     Zoldoske  -'.  State,  82  Wis.  580. 

The  detendant,  charged  with  ])oisoning  the  deceased,  had 
confessed  to  administering  stramonium.  The  deceased  had  died 
suddenly  with  symptoms  of  stramonium  poisoning,  but  those  symp- 
toms are  similar  to  the  symptoms  of  several  diseases.  The  doc- 
tors disagreed  as  to  the  real  cause  of  death,  and  a  conviction  was 
set  aside.     Pitts  v.  State,  43  Miss.  472. 

The  cause  of  death  by  poisoning  may  be  sufficiently  established 
without  any  exi)ert  testimony  and  without  any  chemical  analysis. 
Johnson  v.  State,  29  Tex.  App.  150;  Polk  v.  State,  36  Ark.  117. 

But  where  there  has  been  no  analysis  and  no  post  mortem, 
although  the  defendant  admits  giving  a  certain  draught,  he  should 
not  be  convicted  when  no  motive  for  crime  is  shown  and  the  de- 
fendant is  not  shown  to  have  known  that  the  draught  contained 
poison.     Hatchett  v.  Com.,  76  Va.  1026. 

It  may  be  proved  by  circumstantial  evidence  that  the  substance 
given  to  the  deceased  was  poison.  Com.  v.  Kennedy  (Mass.),  48 
N.  E.  770. 

To  show  that  death  was  due  to  poison,  a  witness  may  testify  as 
to  the  actions  of  the  deceased  at  the  lime  he  is  supposed  to  have 
been  poisoned.     State  v.  David,  131  Mo.  380. 

Expert  Testimony. 

Examinations  of  stomach  of  deceased  by  chemists,  physicians, 
and  other  experts.  State  v.  Cole,  94  N.  C.  958  ;  State  v.  Smith, 
102  Iowa,  656. 

In  Stephens  v.  People,  4  Parker  Cr.  Rep.  (N.  Y.)  396,  the  jury 
were  instructed  to  disregard  so  much  of  chemical  experiments  on 
an  exhumed  body  as  were  performed  after  a  certain  interested 
party  had  had  access  to  the  body  and  might  have  put  arsenic 
in  it. 

It  may  be  shown  that  a  physician  made  a  microscopical  exami- 
nation of  the  stomach  and  intestines  of  the  deceased,  that  he 
found  "  tartar  emetic,"  and  he  may  state  that  in  his  opinion  the 


AMERICAN   NOTES.  359  a* 

"tartar  emetic"  was  the  cause  of  death.  State  v.  Fournier,  C8 
Vt.   262. 

In  Com.  V.  Hobbs,  140  Mass.  443,  it  was  held  to  be  not  error 
to  admit  the  testimony  of  a  chemist  that  he  had  analyzed  certain 
samples  of  meal  and  bread,  into  which  the  defendant  was  accused 
of  putting  poison,  and-  found  that  they  contained  white  arsenic  ; 
that  he  had  analyzed  the  substance  known  as  "Rough  on  Rats" 
(two  boxes  of  which  had  been  bought  by  the  defendant),  and 
found  that  it  consisted  of  white  arsenic  colored  with  lampblack. 

Where  three  attending  physicians  of  good  reputation  testify  that 
death  was  caused  by  morphine,  and  an  autopsy  performed  by 
them  fifty-five  days  after  death  showed  morphine  in  the  stomach 
and  traces  of  its  work  througliout  the  body,  a  verdict  of  guilty  was 
not  set  aside  merely  because  experts  testified  for  the  defendant  in 
such  a  way  as  to  tend  to  cast  a  doubt  upon  the  accuracy  of  the 
State's  evidence  as  to  the  cause  of  death.  People  v.  Harris,  136 
N.  Y.  423;  People  v.  Buchanan,  145  N.  Y.  i. 

Suicide  by  Poison. 

Where  tlie  defence  is  that  the  deceased  committed  suicide  by 
taking  the  poison,  it  is  admissible  to  show  that  she  had  strychnine 
and  knew  how  to  use  it ;  but  such  facts  cannot  be  proved  by  hear- 
say, and  the  statements  of  the  deceased  that  she  had  strychnine 
would  be  hearsay  merely.     State  v.  Kelly,  77  Conn.  266,  271. 

In  Shaw  v.  People,  3  Hun,  272,  the  defendant  was  cliarged  with 
poisoning  his  wife  and  three  children.  The  defendant  claimed 
that  the  wife  had  poisoned  the  children  and  herself  because  of 
jealousy  of  another  woman.  It  was  held  error  to  exclude  evi- 
dence that  the  wife  had  asserted  that  she  had  poison  and  knew 
how  to  use  it,  and  that  she  would  put  the  children  "  under  the 
sod  "  before  the  other  woman  should  have  them. 

Suicide  —  Rebuttal. 

The  deceased  may  be  shown  to  have  had  no  motive  for  suicide 
and  to  have  been  in  a  cheerful  frame  of  mind.  State  v.  Cole,  94 
N.  C.  958. 

To  show  that  the  deceased  may  have  taken  the  poison  causing 
her  death  medicinally,  the  fact  that  she  took  arsenic  as  a  medi- 
cine ten  years  previously  is  too  remote.  Goersen  v.  Com.,  106 
Pa.  477,  51  Am.  Rep.  534. 


359  l^*  AMERICAN   NOTES. 

The  Molineux  Case. 

One  of  the  most  celebrated  of  i)oisoning  cases  of  modern  times 
was  the  case  of  the  People  v.  Molineux,  i68  N.  Y.  264,  and  al- 
though it  is  not  of  so  much  value  touching  upon  the  proof  of  the 
corpus  delicti,  yet  its  circumstances  are  well  worth  relating  at  this 
point.  It  aroused  an  unusual  amount  of  interest,  and  its  circum- 
stances can  scarcely  be  paralleled  in  criminal  annals. 

The  defendant,  Roland  B.  Molineux,  and  one  Harry  S.  Cornish 
were  both  members  of  the  Knickerbocker  Athletic  Club  in  New 
York  City.  On  December  24,  1898,  Cornish  received  through 
the  mail  a  box  containing  a  silver  bottle  holder  and  a  blue  bottle 
bearing  a  "bromo  seltzer"  label  and  filled  with  what  purported  to 
be  "  bromo  seltzer "  powder.  It  came  apparently  as  a  Christ- 
mas gift  from  a  friend.  With  the  bottle  was  enclosed  a  small 
Tiffany  card  envelope,  not,  however,  containing  the  donor's  card. 
Cornish  supposed  the  friend  had  forgotten  the  card,  so  he  re- 
claimed the  wrapping  paper  from  the  waste-basket  and  preserved 
the  written  address  to  discover  from  it  if  possible  the  identity  of 
the  sender.  The  "  bromo  seltzer "  he  took  to  his  home,  which 
was  also  the  home  of  Mrs.  Katharine  J.  Adams  and  her  daughter. 
A  day  or  two  later,  Mrs.  Adams  was  seized  with  a  headache  and 
her  daughter  asked  Cornish  for  some  of  his  "  bromo  seltzer."  He 
prepared  a  dose  for  her  himself,  and  she  drank  most  of  it,  remark- 
ing its  peculiar  taste.  Cornish  himself  thereupon  drank  a  small 
portion  of  what  remained.  In  a  very  short  time  Mrs.  Adams  was 
dead  and  Mr.  Cornish  was  sick,  vomiting  and  in  distress. 

Expert  chemists  analyzed  the  contents  of  the  "bromo  seltzer" 
bottle,  the  sediment  of  the  glass  from  which  Mrs.  Adams  drank, 
and  the  organs  of  Mrs.  Adams'  body,  in  all  of  which  was  found 
a  deadly  poison  known  as  cyanide  of  mercury.  The  cause  of  the 
death  was  therefore  beyond  dispute. 

In  order  to  show  that  this  poison  was  sent  with  criminal  in- 
tent and  was  sent  by  the  defendant,  the  following  evidence  was 
produced : 

Molineux  and  Cornish  had  had  a  serious  personal  disagreement, 
each  accusing  the  other  with  much  bitterness.  Molineux  made 
several  futile  efforts  to  get  Cornish  dismissed  from  the  Knicker- 
bocker Club,  finally  threatening  to  resign  from  the  club  if  Cornish 


AMERICAN   NOTES.  359^* 

were  not  dismissed.  This  threat  he  carried  out.  It  was  not  long 
after  till  Cornish  received  the  "  bromo  seltzer." 

Molineux  was  thirty-one  years  of  age,  well  educated,  and  an  ex- 
pert chemist.  He  was  superintendent  in  the  business  of  Morris 
Hermann  and  Co.,  manufacturers  of  dry  colors,  in  Newark,  N.  J. 
He  himself  possessed  a  chemical  laboratory  in  which  were  found 
a  great  variety  of  chemicals  and  poisons,  from  which  cyanide  of 
mercury  could  easily  be  produced.  Thus  it  was  shown  that  the 
defendant  had  the  requisite  skill  and  materials  with  which  to  com- 
mit the  crime  charged. 

It  appeared  that  the  silver  bottle  holder  received  with  the 
"bromo  seltzer"  had  been  purchased  at  a  store  in  Newark,  near 
the  factory  of  Hermann  and  Co.,  on  December  21,  and  the  de- 
fendant was  seen  near  that  store  on  that  day,  although  the  clerk 
swore  that  the  bottle  holder  was  not  sold  directly  to  Molineux. 
The  box  and  the  card  envelope  were  both  from  Tiffany's,  and  the 
defendant  had  an  account  there,  having  made  recent  purchases. 
The  poison  package  was  mailed  at  the  general  post-office  on  De- 
cember 23,  at  an  hour  when  the  defendant  was  usually  passing 
through  that  vicinity. 

The  fact  of  the  existing  trouble  between  Cornish  and  Molineux 
caused  suspicion  to  be  directed  toward  the  latter  as  the  sender 
of  the  poison  ;  but  the  immediate  occasion  for  his  arrest  was  as 
follows :  As  a  news  item  of  interest  the  "  New  York  Herald  "  had 
published  a. /ac  simile  of  the  address  upon- the  poison  package.  This 
was  seen  by  two  officials  of  the  Knickerbocker  Club,  and  they  at 
once  compared  it  with  the  letters  of  Molineux  addressed  to  the 
Club  in  relation  to  the  Cornish  trouble.  They  were  at  once 
convinced  that  the  handwriting  was  the  same.  Having  this  much 
evidence  as  a  basis,  the  police  placed  Molineux  under  arrest,  and 
he  was  indicted  for  the  murder  of  Mrs.  Adams. 

At  the  trial  the  two  Club  officials  referred  to,  and  one  other  lay 
witness  acquainted  with  Molineux's  handwriting,  testified  to  their 
belief  that  the  poison  package  address  was  in  his  handwriting. 
In  addition,  nine  men  who  were  handwriting  experts  by  profes- 
sion, 'and  five  other  experts  who  held  positions  in  banks,  were  all 
agreed  and  testified  in  Court  that  the  poison  package  address  was 
in  Molineux's  handwriting.  To  arrive  at  this  conclusion  they 
were  allowed  to  use  as  standards  of  comparison  the  various  writ- 
ings described  in  the  note  on  this  case  after  Chapter  IV  herein. 


359  ^*  AMERICAN   NOTES. 

At  the  first  trial  of  this  case,  the  prosecution  introduced  cer- 
tain evidence  to  show  that  about  one  month  previously  Molineux 
had  murdered  one  H.  C.  Barnet  by  similar  means.  Barnet  and 
Moluieux  were  friends,  but  were  also  rivals  for  the  affection  of  one 
Miss  Cheeseborough.  At  first  she  had  favored  Molineux's  suit, 
but  on  becoming  acquainted  with  Barnet,  transferred  her  affections 
to  him.  Shortly  thereafter,  on  October  28,  1S9S,  Barnet  was 
taken  sick,  and  on  November  loth  he  died.  The  physicians  did 
not  suspect  poison,  although  Barnet  told  ihcm  that  he  had  re- 
ceivetl  a  box  of  "Kutnow"  i)owder  through  the  mails,  and  said 
that  the  cause  of  his  trouble  was  a  dose  of  that  powder  that  he 
hatl  taken. 

Later  an  analysis  was  made  of  the  remainder  of  the  "  Kutnow  " 
powder,  and  it  was  found  to  contain  cyanide  of  mercury.  A 
search  was  made  for  the  wrapper,  but  none  was  found.  In  Febru- 
ary, 1S99,  the  body  of  Barnet  was  exhumed,  and  an  analysis  made 
showing  the  presence  of  cyanide  of  mercury.  Experts  testify  that 
this  had  been  the  cause  of  his  death. 

During  Barnet's  illness,  the  defendant  procured  flowers  for  Miss 
Cheeseborough  to  send  him.  Nineteen  days  after  Barnet's  death, 
the  defendant  and  Miss  Cheeseborough  were  married. 

The  further  remarkable  conduct  on  the  part  of  the  defendant 
was  proved  in  Court.  Some  months  before  Barnet's  death,  the  de- 
fendant rented  Box  217  in  a  private  letter-box  system  at  257  W. 
42d  Street,  not  in  his  own  name,  but  in  the  name  H.  C.  Barnet. 
In  this  name,  and  through  this  box,  he  conducted  a  correspond- 
ence with  various  medical  and  chemical  firms,  mostly  firms  deal- 
ing in  remedies  for  impotence.  "■  Kutnow  "  powder  was  one  of 
these  remedies.  To  show  that  Molineux  was  the  real  party 
conducting  this  correspondence,  the  keeper  of  the  letter-box 
system  testified  that  he  was  the  man,  and  there  was  further  intro- 
duced a  certain  "diagnosis  blank"  sent  to  Box  217  by  one  of  the 
medical  firms  and  filled  out  at  their  request  by  the  correspondent. 
This  blank  was  filled  out  by  a  description  of  the  correspondent, 
describing  himself  as  single,  contemplating  marriage,  thirty-one 
years  old,  chest  thirty-seven  inches,  waist  thirty-two  inches,  family 
consumptive,  business  sedentary,  complexion  "yellowish,"  and 
seeking  treatment  for  impotency.  This  in  no  respect  described 
the  real  H.  C.  Barnet,  but  was  a  correct  description  of  the  defend- 


AMERICAN   NOTES.  359  <^'* 

ant.  Til  is  blank  and  the  letters  written  in  Barnet's  name  were 
introduced  in  evidence  to  fasten  the  Barnet  murder  upon  the 
defendant,  and  inferentially  the  Adams  murder,  and  these  writings 
were  used  also  as  standards  with  which  to  compare  the  poison 
package  address. 

Further  still,  to  complete  the  entanglement  of  the  defendant  in 
the  circumstantial  evidence  net,  evidence  was  given  to  show  that 
on  Dec.  21,  1898,  the  defendant,  though  not  in  person,  had 
rented  a  box  in  another  private  letter-box  agency  at  1620  Broad- 
way, this  time  in  the  name  H.  Cornish.  Through  this,  a  corre- 
spondence similar  to  that  in  the  name  of  Barnet  was  conducted, 
and  here,  too,  a  package  of  "  Kutnow  "  powder  was  received,  but 
never  delivered  to  the  defendant.  A  number  of  the  letters  written 
in  this  correspondence,  and  signed  H.  Cornish,  were  on  a  peculiar 
egg-blue  paper  with  a  certain  emblem  like  other  paper  that 
Molineux  was  shown  to  have  had  and  used.  These  letters  also 
were  used  for  comparison  as  well  as  to  connect  the  defendant  with 
the  crime  charged. 

The  defendant  was  convicted  of  the  murder  of  Mrs.  Adams, 
but  on  appeal  to  the  Court  of  Appeals  of  New  York,  he  obtained 
a  new  trial.  The  Court  held  unanimously  that  the  statements  of 
Barnet  to  his  doctor  to  the  effect  that  he  had  received  the 
"  Kutnow "  powder  through  the  mails  was  purely  hearsay  and 
inadmissible. 

Four  out  of  seven  judges  also  held  that  the  evidence  to  show 
that  Molineux  murdered  H.  C  Barnet  was  not  admissible  for  the 
purpose  of  proving  him  guilty  of  murdering  Mrs.  Adams.  Evi- 
dence of  other  crimes  is  generally  not  admissible,  and  there  are 
only  five  exceptions  to  the  general  rule.  Proof  of  other  crimes 
may  be  made  to  show  :  "(i)  Motive  ;  (2)  Intent ;  (3)  The  absence 
of  mistake  or  accident ;  (4)  A  common  scheme  or  plan  embracing 
the  commission  of  two  or  more  crimes  so  related  to  each  other 
that  proof  of  one  tends  to  establish  the  others  ;  (5)  The  identity  of 
the  person  charged  with  the  commission  of  the  crime  on  trial." 
The  majority  of  the  Court  held  that  the  Barnet  evidence  did  not 
fall  within  any  of  the  five  exceptions. 

There  should  be  read  on  this  point,  however,  the  able  dissenting 
opinion  of  Parker,  C.J.,  with  whom  concurred  two  other  judges. 
In  their  opinion  any  evidence  is  admissible,  so  far  as  this  rule  is 


359/*  AMERICAN  NOTES. 

concerned,  wliich  tends  to  show  that  the  defendant  committed  the 
crime  charged,  and  that  if  it  does  so  tend  it  is  immaterial  that  it 
also  tends  to  show  that  the  defendant  committed  another  crime. 
They  further  believe  that  the  Barnet  evidence  does  so  tend  and 
is  admissible.  They  further  contend  that  even  though  the  five 
exceptions  laid  down  by  the  majority  are  the  correct  limitations 
of  the  rule,  the  Barnet  evidence  ought  to  be  admitted  under 
exception  five.     Their  argument  on  this  point  is  very  convincing. 

At  the  new  trial,  presumably  without  the  Barnet  evidence,  Mr. 
Molineux  was  acquitted,  after  having  spent  several  years  in  the 
penitentiary  under  death  sentence. 


Possession  of  Poison  by  Defenda?it. 

The  defendants,  a  man  and  a  woman,  were  charged  with  at- 
tempting to  poison  the  man's  wife.  It  was  shown  that  they  had 
purchased  chloroform  and  croton  oil,  though  they  denied  it  and 
swore  they  did  n't  know  the  druggist. 

The  wife  testified  that  after  taking  medicines  given  her  by  her 
husband  and  after  eating  food  prepared  by  the  woman  she  had 
had  certain  symptoms  shown  to  be  symptoms  of  poisoning  by 
croton  oil.  After  eating  food  at  the  same  time,  the  man  had  com- 
plained of  the  same  symptoms  as  his  wife,  but  a  note  was  in  evi- 
dence written  by  the  woman  defendant  to  the  man,  telling  him 
that  his  wife  had  complained  of  the  food  and  that  he  must  do 
the  same.  The  husband  had  left  home  telling  his  wife  that  he 
would  not  be  back  for  some  time,  but  he  approached  his  wife's 
bed  that  night  with  a  handkerchief  saturated  with  chloroform. 

The  defendants  were  convicted.  Com.  v.  Boatwright  (Pa.),  2 
Lane.   Law  Rev.  293. 

Where  defendant  was  charged  with  attempt  to  murder,  it  was 
shown  that  he  had  mixed  something  that  he  called  "  Rough  on 
Rats "  with  meal  belonging  to  A,  that  he  had  previously  asked  a 
boy  to  mix  the  two,  saying  that  he  wished  to  kill  A,  that  A  and  his 
family  ate  of  the  meal  and  were  made  very  sick,  and  that  a  chicken 
fed  on  the  meal  died,  and  it  was  held  that  the  evidence  was  not 
sufficient  to  show  that  the  mixture  was  poison.  Osborne  v.  State, 
64  Miss.  318. 


AMERICAN   NOTES.  359  i"* 

Sufficiency  of  Evidence  to  Connect  the  Defendant  with  the 
Poisoning. 

Where  one  died  of  arsenical  poisoning,  the  defendant  was 
shown  to  have  had  illicit  relations  with  the  deceased's  wife,  to 
have  had  quarrels  with  the  deceased,  and  to  have  purchased  rat 
poison.  The  defendant  and  the  wife  of  the  deceased  had  put  up 
certain  canned  fruit  and  the  wife  was  shown  to  have  said  that  a 
certain  can  of  it  contained  poison.  A  jar  not  shown  to  be  like 
the  fruit  jars  was  found  in  the  house  with  particles  of  arsenic  in  it. 
It  was  not  shown  that  the  contents  of  that  jar  were  given  to  the 
deceased,  or  that  the  defendant  put  poison  into  any  jar  or  gave 
any  fruit  to  the  deceased,  and  a  conviction  was  set  aside.  State  r. 
Bertoch  (Iowa),  Z^  N.  W.  967. 

In  Com.  V.  Robinson,  146  Mass.  571,  the  defendant  was  charged 
with  the  murder  of  her  brother-in-law  Freeman,  by  poison.  It 
was  shown  that  Freeman,  a  married  man  with  a  wife  and  two 
children,  had  insured  his  life  for  $2,000  in  fiivor  of  his  wife,  Annie 
Freeman.  The  defendant,  a  sister  of  Annie  Freeman,  was  hard 
pressed  for  the  payment  of  debts,  and  had  no  money  with  which 
to  pay.  She  thereupon  formed  the  plan  of  procuring  this  insur- 
ance money,  by  first  killing  her  sister,  then  inducing  Freeman  to 
make  her  the  beneficiary  of  his  insurance  policy,  and  finally  killing 
him.  This  plan  she  carried  out.  Annie  Freeman  died  February 
26;  on  May  13  following,  the  defendant  was  made  the  insurance 
beneficiary  ;  on  June  27,  Freeman  died  ;  and  on  September  23 
the  defendant's  debts  were  paid  from  the  insurance  money. 

In  State  v.  Smith,  102  Iowa,  656,  it  was  proved  that  the  de- 
ceased was  insured  for  $3,000  in  favor  of  the  defendant,  his  wife; 
that  she  had  constant  improper  relations  with  another  man  whom 
she  had  set  up  in  the  saloon  business  with  money  saved  by  her 
husband  and  had  said  she  intended  to  go  away  with  this  man 
as  soon  as  slie  received  the  insurance  money ;  that  about  a  year 
before  his  death,  while  alone  with  the  defendant,  the  deceased  had 
been  shot  through  the  head  and  totally  blinded  ;  that  the  defendant 
had  treated  her  husband  brutally,  and  had  made  several  previous 
attempts  to  poison  him  ;  that  she  had  told  a  witness  that  she  had 
given  something  to  the  deceased,  and  not  to  send  for  a  doctor  if 
he  became  ill ;  that  later  she  filled  a  capsule  with  "  Rough  on  Rats" 


359  J^*  AMERICAN   NOTES. 

and  gave  it  to  her  husband,  and  when  her  paramour  startctl  for 
a  doctor,  she  called  him  back,  and  no  doctor  was  called.  A  post- 
mortem examination  showed  that  the  death  was  due  to  arsenic  ; 
and  the  preparation  called  "  Rough  on  Rats  "  was  proved  to  be 
mostly  arsenic.  This  evidence  was  certainly  sufficient  to  sustain  a 
conviction,  but  the  verdict  was  set  aside  because  of  errors  below, 
not  affecting  the  admissibility  of  the  above  evidence. 

In  State  v.  Cole,  94  N.  C.  958,  the  following  evidence  was  ad- 
mitted and  held  to  be  sufficient  to  convict  the  defendant  of  wife 
murder.  The  wife  was  shown  to  have  been  in  good  health  and 
spirits  shortly  before  her  death,  and  was  alone  with  her  husband 
when  she  died.  After  death,  her  body  was  drawn  up  and  her  jaw 
fallen.  The  defendant  then  told  witnesses  that  he  had  given  her 
a  dose  of  liver  regulator.  He  had  previously  told  one  witness 
that  he  had  plenty  of  strychnine.  He  also  detailed  to  witnesses 
an  account  of  a  previous  similar  attack  sustained  by  his  wife  eleven 
years  before.  The  attending  physician  at  that  former  time  was 
allowed  to  testify  that  previously  thereto  he  had  let  the  defendant 
have  strychnia  "to  bait  crows,"  and  that  in  his  opinion  the 
woman's  attack  was  caused  by  strychnia. 

The  body  of  the  deceased  was  exhumed  several  months  after 
burial,  the  stomach  removed  and  turned  over  to  a  chemist,  who 
reported  that  it  contained  strychnia  and  that  strychnia  was  the 
cause  of  death. 

After  his  wife's  death  the  defendant  was  shown  to  have  given 
away  a  bottle  of  strychnia. 

Here  the  symptoms  related  by  the  defendant,  the  chemist's 
examination,  the  possession  of  poison  by  the  accused,  his  oppor- 
tunity to  give  it,  and  his  suspicious  conduct  all  pointed  to  the 
conclusion  that  death  was  due  to  poison  administered  by  him. 

Infanticide  Cases. 

Proof  of  Corpus  Delicti.  — The  corpus  delicti  was  not  sufficiently 
established  by  the  confession  of  the  mother  that  her  child  was  born 
alive  and  that  she  put  it  in  a  certain  spring,  when  the  body  was 
not  found  in  the  spring  and  death  by  drowning  was  not  proved. 
Harris  v.  State,  28  Tex.  App.  308,  19  Am.  St.  Rep.  837. 


AMERICAN   NOTES.  359   /* 

Infant  Must  Have  Been  Born  Alive. 

It  must  be  proved  that  the  child  was  born  ahve  and  that  it  had 
a  complete  and  separate  existence  of  its  own.  State  v.  McKee, 
I  Add.  (Pa.)  i;  Com.  v.  O'Donohue,  8  Phila.  623. 

Where  the  only  evidence  that  the  child  was  born  alive  is  the 
opinion  of  a  physician  and  the  mother  testifies  it  was  born  dead, 
the  evidence  is  not  sufficient  to  convict.  In  re  Davis  (N.  Y.), 
3  City  H.  Rec.  45. 

Where  no  violence  is  shown  and  it  is  not  proved  that  the  child 
was  born  alive,  flight  of  the  mother  and  concealment  of  the  birth 
are  not  sufficient  to  prove  crime.  Sheppard  v.  State,  17  Tex. 
App.   74. 

A  mother  was  convicted  of  murder  on  the  following  evidence  : 
a  dead  child  was  found  in  a  dry  well  near  by,  the  defendant 
had  shortly  before  showed  signs  of  pregnancy,  and  no  other 
woman  near  by  had,  her  bed-clothing  was  bloody,  she  had  been 
seen  washing  bloody  clothes,  and  would  not  say  whose,  Echols 
V.  State,  81  Ga.  696. 

To  prove  an  infanticide,  a  non-expert  who  had  seen  the  body 
was  allowed  to  say  that  he  thought  it  fully  developed.  Hubbard  v. 
State,  72  Ala.  164. 

Cause  of  Death. 

Where  a  woman  in  labor  went  into  a  thicket  and  later  a  newly 
born  child  was  found  dead  with  bruises  on  the  head  and  hips, 
lying  in  a  gully  partly  filled  with  water,  a  conviction  was  sustained. 
Peters  v.  State,  67  Ga.  29. 

In  Warren  v.  State,  30  Tex.  App.  57,  the  defendant,  the  father 
of  the  child,  who  had  married  its  mother  only  a  month  before  its 
birth,  took  the  child  away  in  a  buggy  one  night,  and  later  its  body 
was  found  under  a  bush.  It  was  shown,  however,  that  the  child 
was  born  at  seven  months  and  was  very  puny,  that  it  was  gasping 
when  given  to  him  by  his  wife's  mother,  and  that  it  bore  no  marks 
of  violence.     A  conviction  for  murder  was  set  aside. 

A  new-born  infant  was  found  out  of  doors  and  returned  to  the 
mother.  The  next  day  it  died,  and  the  death  might  have  been 
due  to  exposure  or  to  smothering.  The  cause  of  death  was  not 
sufficiently  shown.     Lee  v.  State,  76  Ga.  49S. 


3597*  AMERICAN   NOTES. 

In  Com.  V.  Harman,  4  Pa.  269,  the  accused  was  convicted  of 
murdering  her  infant  child  nine  months  old.  She  took  the  child 
away  at  6  a.  m.  and  came  back  at  9  a.  m.,  saying  that  she  h-ad 
given  it  away.  She  had  been  seen  with  a  shovel,  in  the  meantime, 
going  toward  a  stream.  The  body  was  discovered  buried  there, 
the  clothing  damp,  and  the  general  appearance  indicating  death 
by  drowning. 

Sufficiency  of  Proof  of  Dtfendaiif  s  Gtiilt. 

The  defendant,  father  of  an  illegitimate  infant,  was  convicted 
of  murdering  it  on  the  following  evidence  :  The  mother  testified 
that  defendant  took  the  child  when  they  were  out  riding  to- 
gether and  came  back  in  half  an  hour  saying  he  had  left  it  with 
a  family,  —  a  story  shown  to  be  false,  while  the  body  was  found 
in  a  river  near  by  and  identified.  Warren  v.  State  (Tex.),  26 
S.  W.  403. 

In  Re  Gardner,  5  City  H.  Rec.  (N.  Y.)  70,  the  defendant  was 
acquitted  of  the  murder  of  her  infant,  although  she  had  con- 
cealed its  birth,  and  it  was  found  dead  with  a  fractured  skull  in 
a  closet  to  which  the  mother  (defendant)  had  the  key. 

Where  the  mother  of  the  child  testified  that  she  placed  it  in  the 
cistern,  where  the  body  was  found,  immediately  after  its  birth  and 
with  no  one's  knowledge,  it  was  held  that  there  was  not  enough 
evidence  to  convict  the  father  of  the  crime,  though  he  had  oc- 
cupied the  same  room  with  the  mother,  had  objected  to  any 
examination  by  physicians,  and  denied  all  knowledge  of  the 
woman's  confinement,  and  the  infant  was  found  with  a  string 
tightly  wound  about  its  neck.  Josef  v.  State,  34  Tex.  Cr.  Rep. 
446,  30  S.  W.   1067. 

The  defendant  was  the  father  of  an  illegitimate  infant  and  was 
charged  with  its  murder.  Its  mother  had  left  the  child  with  him 
in  a  buggy  and  he  had  driven  away  and  returned  without  it. 
Two  weeks  later  the  child's  body  was  found  well  preserved,  but 
with  wounds  on  it.  An  infant's  dress  was  found  in  the  manger 
of  the  horses  he  had  driven.  Expert  evidence  was  introduced  to 
show  that  the  body  could  have  been  dead  all  of  the  two  weeks 
without  decomposition.  The  defendant  was  convicted.  State  v. 
Cunningham  (Iowa),  82  N.  W.  775. 


AMERICAN   NOTES.  359  >^'* 

In  Johnson  v.  State  (Tex.),  24  S.  VV.  285,  where  defendant  was 
charged  with  murdering  his  daughter's  child  begotten  by  him,  and 
his  defence  was  that  she  had  never  been  pregnant,  the  testimony 
of  the  daughter,  a  doctor,  and  a  mid-wife  was  sufficient  to  over- 
come that  of  the  defendant,  his  wife,  and  his  son. 


;6o  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE 


CHAPTER   VIII. 

OF  THE   FORCE   AND   EFFECT   OF   CIRCUMSTANTIAL 
EVIDENCE.— CONCLUSION. 


Section  i. 


GENERAL   GROUNDS    OF    THE    FORCE    OF    CIRCUM- 
STANTIAL   EVIDENCE. 

In  considerinof  the  force  and  effect  of  circum- 
stantial  evidence,  the  credibility  of  the  testwwny, 
as  distinguished  from  the  credibiHty  of  \k\^fact,  is 
assumed,  since  it  is  a  quahty  essential  to  the  value  of 
circumstantial,  in  common  with  all  moral,  evidence. 

Our  faith  in  moral  evidence  is  grounded,  as 
we  have  seen,  upon  our  confidence  in  the  perma- 
nence of  the  order  of  nature,  and  in  the  reality  and 
fidelity  of  the  impressions  received  by  means  of 
the  senses  which  connect  us  with  the  external 
world  and  with  other  men  ;  and  upon  the  laws  of 
our  moral  and  intellectual  being,  the  immutability 
of  moral  distinctions,  and  the  authority  of  con- 
science {a)  ;  so  that  if  we  could  correctly  estimate, 
and  were  able  to  eliminate,    the  various   disturbing 

{a)  See  Ch.  i.,  section  3,  p.  5,  supra. 


GENERALLY.  36 1 

influences  which  tend  to  divert  men  from  the  path  of 
truth  and  rectitude,  our  reasonings  and  conclusions 
would  possess  all  the  force  of  demonstration. 

The  silent  workings,  and  still  more  the  explosions, 
of  human  passion  which  bring  to  light  the  darker 
elements  of  man's  nature,  present  to  the  philoso- 
phical observer  considerations  of  intrinsic  interest ; 
while  to  the  jurist,  the  study  of  human  nature  and 
human  character  with  its  infinite  varieties,  especi- 
ally as  affecting  the  connection  between  motive  and 
action,  between  irregular  desire  or  evil  disposition 
and  crime  itself,  is  equally  indispensable  and  difficult. 
No  department  of  inquiry  demands  more  constant 
watchfulness  or  more  habitual  and  patient  care  and 
thought. 

The  distinct  and  specific  proving  power  of  circum- 
stantial evidence,  as  incidentally  stated  in  a  former 
part  of  this  Essay,  depends  upon  its  incompatibility 
with  any  reasonable  hypothesis  other  than  that 
of  the  truth  of  the  principal  fact  in  proof  of  which 
it  is  adduced  [d)  ;  so  that,  after  the  exhaustion  of 
every  other  mode  of  solution,  we  must  either 
conclude  that  the  accused  has  been  guilty  of  the 
fact  imputed,  or  renounce  as  illusory  the  results 
of  consciousness  and  experience,  and  such  know- 
ledge as  we  possess  of  the  workings  of  the  human 
mind  {c). 

Conclusions  thus  formed  are  simple  inferences  of 
the  understanding,  aided  and  corrected  by  the  appli- 

{b)  See  Ch.  ii.,  section  3,  p.  34,  supra.    See  also  Rule  4,  p.  262,  supra. 
{c)  Tiaite  de  la  Preuve,  par  Mittermaier,  ch.  59. 


o 


62  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE 


cation  of  those  rules  of  evidence  and  those  pro- 
cesses of  reason  which  sound  and  well-ripened 
experience  has  consecrated  as  the  best  methods  of 
arriving  at  truth  ;  and  they  constitute  that  moral 
CERTAINTY  upon  which  men  securely  act  in  other 
great  and  important  concerns,  and  upon  which  they 
may  therefore  safely  rely  for  the  truth  and  correctness 
of  their  conclusions  in  regard  to  those  events  which 
fall  within  the  province  of  criminal  jurisprudence. 

Many  continental  codes,  following  the  principles 
of  the  civil  law,  prescribe  imperative  formula; 
descriptive  of  the  kind  and  amount  of  evidence 
requisite  to  constitute  legal  proof.  Those  principles 
formerly  prevailed  in  the  reception  of  evidence  in 
the  Ecclesiastical  and  in  the  Admiralty  Courts  [d)  in 
this  country,  so  far  as  to  require  the  testimony  of 
a  plurality  of  witnesess  ;  but  such  a  restriction  has 
long  ceased  to  be  in  force.  The  diversities  of 
individual  men  render  it  impracticable  thus  definitely 
to  estimate  the  infinite  combinations  of  human 
motives  and  actions  ;  or  to  fix,  with  arithmetical 
exactness,  standards  of  proof  which  shall  operate 
with  unvarying  force  upon  the  minds  of  all  men. 
Such  arbitrary  rules  are  not  merely  harmless,  nor 
simply  superfluous  ;  they  are  often  dangerous  to  the 
cause  of  truth  ;  they  operate  as  fetters  on  the  con- 
science of  the  Judge,  obliging  him  occasionally  to 
determine  contrary  to  his  own  convictions  of  truth  ; 
are  unnecessary  for  the  protection  of  the  innocent, 
and  effective  only  for  the  impunity  of  the  guilty  {e). 

{d)  See  the  preamble  to  28  Hen.  viii.  c.  15. 

(e)  Trait d  de  la  Preuve,  par  Mittermaier,  ch.  8.    Cf.  pp.  29-31,  supra. 


GENERALLY.  363 

A  learned  Judge  of  one  of  our  ecclesiastical  courts, 
after  commenting  on  the  ancient  but  now  obsolete 
rule  of  those  courts,  that  one  witness  is  not  sufficient 
to  establish  the  fact  of  adultery,  said,  "To  this 
authority  I  readily  submit,  and  I  am  bound  to  do 
so ;  but  I  must  honestly  say  that  I  do  it  upon 
compulsion.  I  am  bound  by  this  rule,  and  so  long 
as  it  remains  a  rule  of  these  courts,  so  long  as  more 
evidence  is  required  to  prove  an  act  of  adultery 
than  to  find  a  man  guilty  of  murder,  it  will  be 
my  duty  to  obey  that  rule  "  {/). 

The  very  few  cases  in  which  the  law  of  Eng- 
land requires  a  particular  amount  of  evidence,  as  on 
trials  for  high  treason,  where  two  witnesses  are 
required,  and  in  cases  of  perjury,  where  there  must 
be  two  witnesses,  or  the  testimony  of  one  witness 
confirmed  in  some  material  particular  by  independent 
evidence,  are  grounded  upon  different  principles  ;  in 
the  former,  upon  motives  of  policy,  for  the  protection 
of  persons  charged  with  political  crime  from  becom- 
ing the  victims  of  party  violence  ;  and  in  the  latter, 
because  mere  contradiction  by  the  oath  of  a  single 
witness  has  never  been  considered  as  of  itself  sufficient 
to  prove  that  the  accused  has  been  guilty  of  wilful 
falsehood,  and  the  old  rule  has  not  been  altered  by 
Act  of  Parliament. 

Since  the  Criminal  Evidence  Act,  1898,  the  same 
reasoning  applies  in  all  cases  where  the  prisoner 
gives  evidence  on  his  own  behalf,  but  has  special 

(/)  Per  Dr.  Lushington,  in  Taylor  v.  Taylor^  6  Eccl.  &  Mar.  Cases, 
at  p.  563. 


364  FORCE    OF   CIRCUMSTANTIAL    EVIDENCE 

force  in  cases  where  there  is  a  peculiar  risk  of 
false  evidence,  notably  in  charges  of  assaults  upon 
women  and  children  and  kindred  offences.  Female 
chastity  is  so  highly  prized,  and  is  of  such  social 
importance,  that  there  is  often  very  great  temp- 
tation to  a  woman  to  screen  herself  by  making  a 
false  or  exaggerated  charge,  and  supporting  it  with 
minute  details  of  evidence  of  a  kind,  which  the 
female  mind  seems  peculiarly  adapted  to  invent. 
Unless,  therefore,  the  story  of  the  prosecutrix  is 
corroborated,  it  becomes  a  mere  question  of  oath 
against  oath,  and  although  the  law  does  not  in 
these  cases  technically  require  corroborative  evi- 
dence, except  in  certain  cases  under  the  Criminal 
Law  Amendment  Act  (^),  judges  are  in  the  habit  of 
telling  juries  that  it  is  not  safe  to  convict  the 
prisoner  upon  the  unsupported  statements  of  the 
woman  or  child.  In  the  case  of  charges  by 
children,  there  is  the  additional  difficulty  that  they 
are  constantly  too  young  and  too  ignorant  to  have 
the  least  appreciation  of  the  gravity  of  the  charge 
made,  and  very  often  to  have  any  moral  idea  at  all ; 
and  it  is  frequently  impossible  to  apply  to  their 
stories    the    tests    by  which,    to   some    extent,    the 


(^)  48  &  49  Vict.  c.  69,  ss.  2,  3,  and  4.  Corroborative  evidence 
is  also  required  in  affiliation  proceedings  (8  Vict.  c.  10,  s.  6  ;  and  35 
&  36  Vict.  c.  65,  s.  4)  and  under  section  15  of  the  Prevention  of 
Cruelty  to  Children  Act,  1894  (57  &  58  Vict.  c.  41),  as  well  as  in 
actions  for  breach  of  promise  of  marriage.  Such  actions  were,  by 
s.  2,  excepted  from  14  &  15  Vict.  c.  92  which  made  plaintiffs  and 
defendants  in  civil  suits  competent  witnesses.  The  disability  of  the 
parties  to  an  action  for  breach  of  promise  of  marriage  to  give 
evidence,  was  removed  by  32  &  33  Vict.  c.  68,  s.  2  ;  but  the  condi- 
tion was  imposed  that  the  evidence  of  the  plaintiff  must  be  corroborated 
in  some  material  particular. 


GENERALLY.  365 

falsehoods  and  exaggerations  of  grown-up  persons 
can  be  detected,  or  to  tell  how  far  they  are  relating 
what  happened,  or  what  has  been  drilled  into  them 
by  parents  or  friends. 

Upon  an  analogous  principle,  the  evidence  of  an 
accomplice  requires  corroboration.  It  has  been 
often  said  that  this  is  not  a  rule  of  law,  but  that  it 
is,  nevertheless,  the  duty  of  the  Judge  to  insist 
with  juries  that  they  ought  not  to  convict  upon  the 
unsupported  testimony  of  an  accomplice.  To  the 
Editor  it  has  always  seemed  that  if  it  is  the  duty  of 
the  Judge  to  tell  the  jury  that  they  ought  not 
to  convict  under  such  circumstances,  it  should  be 
the  duty  of  the  jury  to  follow  what  the  Judge  ought 
to  tell  them.  He  acted  upon  this  view  at  the 
Central  Criminal  Court  in  an  important  case  {k)  in 
which  he  withdrew  from  the  jury  one  of  the  counts 
in  an  indictment  upon  which  there  was  very  clear 
and  unshaken  evidence  by  the  accomplice,  but 
nothing  else  ;  and  he  is  informed  by  Sir  Arthur 
Charles  that,  in  a  case  tried  at  Winchester,  in  which 
he  was,  when  at  the  bar,  counsel  for  the  prosecution, 
Mr.  Baron  Bramwell  ruled  in  the  same  way,  and 
upon  the  same  grounds  ;  and,  refusing  to  leave  the 
case  to  the  jury,  directed  an  acquittal  where  there 
was  no  corroboration  of  the  accomplice. 

If  it  be  proved  that  a  party  charged  with  crime 
has  been  placed  in  circumstances  which  commonly 
operate  as  inducements  to  commit  the  act  in  ques- 

{h)  Reg.  V.  Wilde,  C.  C.  C,  May  1895.     The  ruling  was  at  the  close 
of  the  case  for  the  prosecution,  and  on  May  23. 


366    FORCE  OF  CIRCUMSTANTIAL  EVIDENCE 

tion — that  he  had  so  far  yielded  to  the  operation  of 
those  inducements  as  to  have  manifested  the  dis- 
position to  commit  the  particular  crime — that  he  has 
possessed  the  requisite  means  and  opportunities  of 
effecting  the  object  of  his  wishes— that  recently 
after  the  commission  of  the  act  he  has  become 
possessed  of  the  fruits  or  other  consequential  advan- 
tao^es  of  the  crime — if  he  be  connected  with  the 
corpus  delicti  by  any  conclusive  mechanical  circum- 
stances, as  by  the  impressions  of  his  footsteps,  or 
the  discovery  of  any  article  of  his  apparel  or 
property  at  or  near  the  scene  of  the  crime — if  there 
be  relevant  appearances  of  suspicion  connected 
with  his  conduct,  person,  or  dress,  and  such  as 
he  might  reasonably  be  presumed  to  be  able,  if 
innocent,  to  account  for,  but  which,  nevertheless,  he 
cannot  or  will  not  explain — if,  being  put  upon  his 
defence  recently  after  the  crime,  under  strong 
circumstances  of  adverse  presumption,  he  cannot 
show  where  he  was  at  the  time  of  its  com- 
mission— if  he  attempt  to  evade  the  force  of  those 
circumstances  of  presumption  by  false  or  incredible 
pretences,  or  by  endeavours  to  evade  or  pervert  the 
course  of  justice — the  concurrence  of  all  or  of  many 
of  these  cogent  circumstances,  inconsistent  with  the 
supposition  of  his  innocence  and  unopposed  by 
facts  leading  to  a  counter-presumption,  naturally, 
reasonably,  and  satisfactorily  establishes  the  moral 
certainty  of  his  guilt ;  if  not  with  the  same  kind  of 
assurance  as  if  he  had  been  seen  to  commit  the 
deed,  at  least  with  all  the  assurance  which  the 
nature  of  the  case  and  the  vast  majority  of  human 
transactions  admit.     In  such  circumstances  we  are 


GENERALLY.  367 

justly  warranted  in  adopting,  without  reserve,  the 
conclusions  to  which  the  mind  is  naturally  con- 
ducted  "  by  a  broad,  general,  and  comprehensive 
view  of  the  facts,  and  not  relying  upon  minute 
circumstances  with  respect  to  which  there  may  be 
some  source  of  error "(?'),  and  in  regarding  the 
application  of  the  sanctions  of  penal  law  as  a  mere 
corollary. 

Nor  can  any  practice  be  more  absurd  and 
unjust  than  that  perpetuated  in  some  modern 
codes,  which,  while  they  admit  of  proof  by  circum- 
stantial evidence,  inconsistently  deny  to  it  its 
logical  and  ordinary  consequences.  Thus  the  penal 
code  of  Austria  [k)  prohibits  the  application  of  capital 
punishment  to  the  crime  of  murder,  "  ou  I'inculpe 
n'est  convaincu  que  par  le  concours  des  circon- 
stances";  but  nevertheless  the  party  may  be 
sentenced  to  an  imprisonment  of  twenty  years  ;  and 
the  same  indefensible  practice  prevails  in  many 
other  States,  though  with  a  considerable  diversity 
as  to  the  maximum  penalty  (/).  How  wise  and 
just  the  emphatic  condemnation  of  the  French 
Papinian  :  "  Ut  Veritas,  ita  probatio,  scindi  non 
potest :  quai  non  est  plena  Veritas  est  plena  falsitas, 
non  semiveritas  ;  sic,  quae  non  est  plena  probatio, 
plane  nulla  probatio  est  "  (w). 

if)  Per  Pollock,  L.C.B.,  in  Reg.  v.  Mannmg  and  Wife,  see  pp.  265 
and  269,  SKpra. 

{k)  Premiere  partie,  art.  430. 

(/)  See  note,  p.  32,  supra^  and  Mittermaier,  Traitd  de  la  Preuve,  c.  61. 

(w)  Cujas,  Cod.  t.  de  Leg.,  and  see  Gabriel,  67. 


368  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE 


Section  2. 

considerations  which  augment  the  force  of  cir- 
cumstantial evidence  in  particular  cases. 

Such  are  the  considerations  which  constitute  the 
force  and  effect  of  circumstantial  evidence  m general  \ 
but  there  are  some  collateral  considerations  which 
augment  the  force  of  circumstantial  evidence  in 
particular  cases,  and  greatly  increase  the  strength 
and  security  of  our  convictions,  upon  which  it 
will  be  expedient  to  enlarge. 

(i.)  The  most  important  of  these  auxiliary  con- 
siderations arises  from  the  concurrence  of  many  or 
of  several  separate  and  independent  circumstances 
pointing  to  the  same  conclusion,  especially  if  they  be 
deposed  to  by  unconnected  witnesses.  In  proportion 
to  the  number  of  cogent  circumstances,  each  sepa- 
rately bearing  a  strict  relation  to  the  same  inference, 
the  stronger  their  united  force  becomes,  and  the  more 
secure  becomes  our  conviction  of  the  moral  certainty 
of  the  fact  they  are  alleged  to  prove,  as  the 
intensity  of  light  Is  increased  by  the  concentration 
of  a  number  of  rays  to  a  common  focus.  It  Is 
forcibly  remarked  by  a  learned  writer  (;2),  that  "  the 
more  numerous  are  the  particular  analogies,  the 
greater  Is  the  force  of  the  general  analogy  resulting 
from  the  fuller  Induction  of  facts,  not  only  from  the 
mere  accession  of  particulars,  but  from  the  addi- 
tional strength    which    each    particular   derives    by 

(«)  Bishop  Hampden. 


IN    PARTICULAR    CASES.  369 

b-'Ing  surveyed  jointly  with  other  particulars,  as  one 
among  the  correlative  parts  of  a  system."  Although 
neither  the  combined  effect  of  the  evidence,  nor  any 
of  its  constituent  elements,  admits  of  numerical 
comi)utation,  yet  with  the  number  of  independent 
circumstances  and  witnesses,  its  cogency  increases 
according  to  a  geometrical  rather  than  an  arith- 
metical progression.  The  effect  of  a  body  of  circum- 
stantial evidence  is  sometimes  compared  to  that  of 
a  chain,  but  the  metaphor  is  inaccurate,  since  the 
weakest  part  of  a  chain  is  also  its  strongest.  Such 
evidence  is  more  aptly  to  be  compared  to  a  rope 
made  up  of  many  strands  twisted  together.  The 
rope  has  strength  more  than  sufficient  to  bear  the 
stress  laid  upon  it,  though  no  one  of  the  filaments  of 
which  it  is  composed  would  be  sufficient  for  that 
purpose  [o).  These  remarks  are  applicable  with 
especial  force  to  the  written  enumeration  of  a 
number  of  minute  facts  "  multiplying  beyond  calcu- 
lation the  means  of  detecting  imposture  ;  serving 
the  purpose  of  an  accuser  by  hints  and  allusions 
only,  such  as  would  be  found  in  genuine  corre- 
spondence, not  by  those  clear  and  positive  mani- 
festations of  guilt  by  which  an  eager  partisan 
betrays  his  forgeries  "  {/>). 

The  increase  of  force  produced  by  the  concurrence 
of  independent  circumstances  is  analogous  to  that 
which  is  the  result  of  the  concurrence  of  several 
independent  witnesses  in  relating  the  same  fact ;  and 
if  these  elements  admitted  of  numerical  valuation, 

{6)  Reid's  Essays  on  the  Intellectual  Powers,  Essay  vii.  c.  iii. 
{P)  Sir  James  Mackintosh. 

C.E.  B  B 


3/0  FORCE    OF   CIRCUMSTANTIAL    EVIDENCE 

it  has  been  said  that  their  combined  effect  would  be 
capable  of  being  represented  by  a  fraction,  having 
for  its  numerator  the  product  of  the  chances  favour- 
able to  the  testimony  of  each  witness,  and  for  its 
denominator,  the  sum  of  all  the  chances,  favourable 
and  unfavourable,  the  unfavourable  chances  being 
the  product  of  the  several  deficiencies  of  the  wit- 
nesses. Whether  the  supposed  composition  of  the 
numerator  and  denominator  is  mathematically 
accurate  may  be  open  to  question,  but  the  chances 
would  certainly  be  represented  by  some  such  frac- 
tion. If,  however,  in  such  case  the  witnesses  be 
dependent  on  each  other,  so  that  the  testimony  of 
the  second  depends  for  its  truth  upon  that  of  the 
first,  that  of  the  third  upon  that  of  the  second,  and 
so  on,  then  the  effect  of  the  evidence  diminishes 
with  every  increase  in  the  number  of  the  witnesses 
or  the  facts,  just  as  an  increase  in  the  denominator 
of  a  fraction  reduces  it  to  one  of  inferior  value  (q). 

A  learned  writer  has  illustrated  the  subject  by  a 
case  which  at  first  sight  seems  an  extreme  one,  and 
it  has  occasionally  been  pressed  in  argument  with 
much  force  (r).  "  Let  it  be  supposed,"  says  he, 
"  that  A.  is  robbed,  and  that  the  contents  of  his 
purse  were  one  penny,  two  sixpences,  three  shillings, 
four  half- crowns,  five  crowns,  six  half-sovereigns, 
and  seven  sovereigns,  and  that  a  person  appre- 
hended in  the  same  fair  or  market  where  the  rob- 
bery takes  place  is  found  in  possession  of  the  same 

{q)  2  Kirwan's  Logic,  c.  vii.     Hartley's  Obs.  c.  Hi.  s.  2,  prop.  LXXX. 

(r)  See  the  trial  of  the  Rev.  Ephraini  Avery^  charged  with  the 
murder  of  Sarah  Maria  Cornell,  before  the  Supreme  Court  of  Rhode 
Island,  May,  1833.    (Boston.) 


IN    PARTICULAR    CASES.  37 1 

remarkable  combination  of  coin  and  of  no  other, 
but  that  no  part  of  the  coin  can  be  identified  ;  and 
that  no  circumstances  operate  against  the  prisoner 
except  his  possession  of  the  same  combination  of 
coin  :  here,  notwithstanding  the  very  extraordinary 
coincidence  as  to  the  number  of  each  individual 
kind  of  coin,  althouo^h  the  circumstances  raise  a 
high  probability  of  identity,  yet  it  still  is  one  of 
an  indefinite  and  inconclusive  nature  "  {s).  The  pro- 
bability that  the  coins  lost  and  those  discovered 
are  the  same  is  so  great,  that  perhaps  the  first 
impulse  of  every  person  unaccustomed  to  this  kind 
of  reasoning  is  to  conclude  that  they  certainly  are 
so  ;  yet,  nevertheless,  the  case  is  one  of  probability 
only,  the  degree  of  which  is  more  or  less  capable  of 
exact  calculation  ;  but  if  that  degree  of  probability, 
high  as  it  is,  were  sufficient  to  warrant  conviction 
in  the  particular  case,  it  would  be  impossible  to 
draw  the  distinction  between  the  degree  of  pro- 
bability which  would  and  that  which  would  not 
justify  the  inHiction  of  penal  retribution  in  other 
cases  of  inferior  probability.  In  the  case  of  a  small 
number  of  coins,  two  or  three  for  instance,  the 
probability  of  their  identity  would  be  very  weak  ; 
and  yet  the  two  cases,  though  different  in  degree,  are 
in  principle  the  same  ;  and  the  chance  of  identity 
is  in  both  cases  capable  to  some  extent  of  precise 
determination.  The  learned  writer  adds,  that 
"  although  the  fact  taken  nakedly  and  alone,  with- 
out any  collateral  evidence,  would  in  principle  be 
inconclusive,  yet,  if  coupled  with  circumstances  of  a 
conclusive  tendency,  such  as  flight,  concealment  of 

{s)  Starkie's  Law  of  Evidence  (Ed.  1853),  p.  854. 

B  B  2 


372  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE 

the  money,  false  and  fabricated  statements  as  to  the 
possession,  it  might  afford  strong  and  pregnant 
evidence  of  guilt  for  the  consideration  of  the  jury." 
In  like  manner  it  would  be  difficult  to  resist  the 
inference  of  the  identity  of  the  coins,  if  in  the  case 
supposed  they  were  scarce  or  foreign  ones. 

Few  facts,  however,  are  absolute  or  free  from 
qualifying  circumstances  ;  still  fewer  are  capable  of 
numerical  estimation.  The  veracity  of  witnesses 
also  is  generally  open  to  question,  and  the  cases  to 
which  this  kind  of  reasoning  is  applicable,  if  any  such 
there  be,  must  be  very  rare.  Every  attempt  to 
apply  such  estimation  to  the  combination  of  facts 
and  probabilities  would  give  a  product  affected  by 
the  same  sources  of  error  and  uncertainty,  as  affect 
its  separate  elements  ;  and  in  all  judgments  grounded 
upon  circumstantial  evidence,  this  fundamental  differ- 
ence between  moral  and  mathematical  certainty  must 
be  borne  in  mind.  "  It  were  absurd,"  declares  a 
philosophical  writer,  "  to  say  that  the  sentiment  of 
belief  produced  by  any  probability  is  proportioned 
to  the  fraction  which  expresses  that  probability  ; 
but  it  is  so  related  to  it,  or  ought  to  be  so,  as  to 
increase  when  it  increases,  and  to  diminish  when  it 
diminishes  "  (/).  It  is  manifest,  however,  that  the 
effect  of  the  concurrence  of  many  witnesses,  and  the 
conjunction  of  many  separate  circumstances,  is  to 
add  greatly  to  the  force  of  each  ;  and  if  the  credit 
of  the  witnesses  be  unimpeachable,  and  the  hypo- 
theses of  confederacy  and  error  be  excluded,  they 
may  lead  to  an  irresistible  conviction  that  the  facts 

(/)  4  Playfair's  Works,  437. 


IN    PARTICULAR    CASES.  373 

to  which  they  relate  are  true.  The  case  suggested 
is  that  of  circumstantial  evidence  in  its  most  cogent 
form  ;  and  in  such  case  the  conclusion  to  which 
its  various  elements  converge  must  often  be  regarded 
as  morally  certain. 

(2.)  Apart  from  the  direct  effect  of  that  pro- 
bability which  results  from  a  concurrence  of  inde- 
pendent witnesses  or  circumstances,  the  security  of 
our  judgments  is  further  increased  by  the  con- 
siderations that,  in  proportion  to  the  number  of 
such  witnesses  or  circumstances,  confederacy  is 
rendered  more  difficult,  and  that  increased  oppor- 
tunities and  facilities  are  afforded  of  contradicting 
some  or  all  of  the  alleged  facts  if  they  be  not  true. 
To  preserve  consistency  in  a  work  even  professedly 
of  fiction,  where  all  the  writer's  art  and  attention 
are  perpetually  exerted  to  avoid  the  smallest  ap- 
pearance of  discrepancy,  is  an  undertaking  of  no 
common  difficulty:  and  it  is  obvious  that  the  diffi- 
culty must  be  still  greater  of  preserving  coherency 
and  order  in  a  fabricated  case  which  must  be  sup- 
ported by  the  confederacy  of  several  persons,  where 
even  a  slight  variation  in  any  of  the  minute  circum- 
stances of  the  transaction  or  of  its  concomitants  may 
lead  to  detection  and  exposure.  On  the  other  hand, 
though,  if  the  main  features  of  the  case  do  not  satis- 
factorily establish  guilt,  it  is  not  safe  to  rely  upon  very 
minute  circumstances  (/^),  yet,  if  the  statements  of  the 
witnesses  are  based  upon  realities,  the  more  rigorously 
they  are  sifted  the  more  satisfactory  will  be  the 
general    result,    from    the    development  of   minute 

(u)  Per  Rolfe,  B.,  in  Reg.  v.  Rush,  Norfolk  Spring  Ass.  1849. 


374     FORCE  OF  CIRCUMSTANTIAL  EVIDENCE 

indirect,  and  unexpected  coincidences  in  the 
attendant  minor  particulars  of  the  main  event  (x). 
It  was  happily  remarked  by  Dr.  Paley,  that  "  the 
itndcsioiiedness  of  the  agreements  (which  unde- 
signedness  is  gathered  from  their  latency,  their 
minuteness,  their  obliquity,  the  suitableness  of  the 
circumstances  in  which  they  consist,  to  the  places  in 
which  those  circumstances  occur,  and  the  circuitous 
references  by  which  they  are  traced  out)  demon- 
strates that  they  have  not  been  produced  by  medita- 
tion or  by  any  fraudulent  contrivance.  But  coin- 
cidences from  which  these  causes  are  excluded,  and 
which  are  too  numerous  and  close  to  be  accounted 
for  by  accidental  concurrences  of  fiction,  must 
necessarily  have  truth  for  their  foundation "  (jj'). 
The  same  writer  also  justly  remarks,  that  "  no 
advertency  is  sufficient  to  guard  against  slips 
and  contradictions  when  circumstances  aie  multi- 
plied"  (s).  Hence  it  is  observed,  in  courts  of 
justice,  that  witnesses  who  come  to  tell  a  concerted 

{x)  A  remarkable  illustration  of  the  truth  of  this  observation 
occurred  within  the  Editor's  experience.  He  had,  in  the  year  1889, 
to  try  at  Taunton  Assizes  a  young  man  named  Reyland  for  murder. 
After  a  careful  study  of  the  depositions,  and  a  visit  to  the  spot  where 
the  murder  was  committed  and  the  various  localities  mentioned  by  the 
witnesses,  he  came  to  the  conclusion  that  it  was  impossible  then  to 
form  any  opinion  as  to  the  guilt  or  innocence  of  the  prisoner,  and  that 
the  sohitii  n  of  that  question  would  depend  upon  a  great  number  of 
small  incidents  and  facts  which  had  not  so  far  been  investigated,  but 
which  must  be  carefully  inquired  into.  If  the  prisoner  was  innocent 
he  felt  confident  the  new  facts  would  be  in  his  favour  ;  if  not,  they 
would  be  against  him.  In  every  single  instance  the  new  matter 
elicited  was  unfavourable  to  the  prisoner.  He  was  convicted  and 
executed,  having  fully  confessed  his  guilt.     See  also  p.  176,  supra. 

i^y)  Paley's  Evid.,  P.  ii.  c.  vii.  ;  compare  Whately's  Rhet.  p.  i.  c.  ii. 
s.  4  ;  Greenleaf  s  Law  of  Evidence,  P.  I.  ch.  3,  sections  13  &:  13a. 

iz)  HoriE  Paulinae,  c  i. 


IN    PARTICULAR    CASES.  3/5 

Story  are  always  reluctant  to  enter  into  particulars, 
and  perpetually  resort  to  shifts  and  evasions  to  gain 
time  for  deliberation  and  arrangement,  before  they 
reply  directly  to  a  course  of  examination  likely  to 
bring  discredit  upon  their  testimony. 

It  must  nevertheless  be  admitted  that  history  and 
experience  supply  abundant  evidence  that  it  would 
be  most  erroneous  in  the  abstract  to  decide  a 
matter  of  fact  by  the  numbers  of  either  witnesses 
or  incidents,  and  that  there  have  been  extraordinary 
cases  of  false  charges,  most  artfully  and  plausibly 
supported  by  connected  trains  of  feigned  circum- 
stances. 

But  considering  the  circumstances  of  the  class  of 
persons  liable  to  be  accused  of  crime — their  depriva- 
tion of  personal  freedom — their  usual  lack  of  friends, 
of  money,  and  professional  aid — their  imperfect 
knowledge  of  the  facts  proposed  to  be  proved — their 
frequent  inability  to  understand  how  the  facts  bear 
upon  the  question  of  their  guilt  or  innocence — the 
alleged  facility  of  disproof  is  often  more  imaginary 
than  real.  Lord  Eldon  thus  forcibly  expressed  him- 
self on  this  question  :  "  I  have  frequently  thought 
that  more  effect  has  been  given,  than  ought  to  have 
been  given,  in  what  is  called  the  summing-up  of  a 
Judge  on  a  trial,  to  the  fact,  that  there  has  not  been 
the  contradiction  on  the  part  of  the  defence  which  it 
is  supposed  the  witnesses  for  the  accusation  might 
have  received.  ...  It  may  often  happen  that,  in  the 
course  of  a  trial,  circumstances  are  proved  which 
have  no  bearing  on  the  real  question  at  issue  ;  and 


3/6  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE 

it  may  also  happen,  that  facts  are  alleged  and 
sworn  to  by  witnesses  which  it  is  impossible  for 
the  accused  party  to  contradict  ;  circumstances  may 
be  stated  by  witnesses  which  are  untrue  ;  yet  they 
may  not  be  contradicted,  because  the  party  injured 
by  them,  not  expecting  that  that  which  never  had 
any  existence  would  be  attempted  to  be  proved, 
cannot  be  prepared  with  opposing  witnesses.  So, 
also,  in  cases  in  which  an  individual  witness  speaks 
to  occurrences  at  which  no  other  person  was  present 
but  himself.  There  it  may  be  absolutely  impos- 
sible to  contradict  him  "  [a). 

Many  of  the  disadvantages  under  which  prisoners 
were  placed  in  Lord  Eldon's  time  have  been  removed 
or  greatly  diminished.  They  now  have  a  ri^/ii  to 
require,  upon  payment  of  a  reasonable  sum,  copies  of 
the  depositions  upon  which  they  were  committed  or 
held  to  bail  [d)  by  a  justice  of  the  peace — also  of  any 
evidence  called  on  their  own  behalf  (c)  ;  and  this  right 
has  been  extended  to  the  evidence  g-iven  before  the 
coroner  in  cases  of  committal  upon  a  coroner's 
inquisition  (d).  An  enforceable  legal  right  to  have 
copies  of  the  evidence  proposed  to  be  given  at 
the  trial  does  not  exist  with  regard  to  evidence  dis- 
covered in  the  interval  between  the  committal  and 
the  trial,  or  other  additional  evidence  which  the 
prosecution  may  wish  to  call  ;  nor  where  the  indict- 
ment is  found  without  previous  committal.     Copies  of 

(a)  Hansard's  Pari.  Deb.,  New  Series  (1820),  vol.  iii.  col.  1445. 
(d)  The  Indictable  OiYences  Act,  1848  (11  &  12  Vict.  c.  42),  following 
an  earlier  Act  of  Will.  IV. 
(c)  30  &  31  Vict.  c.  35,  s.  3.  (^)  50  &  51  Vict.  c.  71,  s.  18  (5). 


IN    PARTICULAR    CASES.  377 

all  evidence  of  this  character  ought  to  be  given  to 
the  prisoner,  and  it  was  always  the  subject  of 
very  strong  comment  where  this  was  not  done  ;  but 
it  was  decided  that  the  court  could  not  for  that 
reason  reject  it  (t^).  It  is,  however,  within  the 
competence  of  the  Judge  to  express  his  opinion  that 
the  evidence  ought  not  to  be  given  [/)  if  he  thinks 
its  admission  unfair  ;  such  an  intimation  is  always 
attended  to,  and  there  is  at  the  present  day  seldom 
any  foundation  for  complaint  on  this  score.  The 
provisions  of  the  Vexatious  Indictments  Act, 
together  with  the  opportunity  every  accused  person 
now  has  of  givinor  his  own  evidence  on  oath,  and  of 
affording  a  full  explanation  or  contradiction  of  the 
evidence  against  him,  practically  save  him  trom 
oppression,  and  his  position,  so  far  as  knowledge  of 
the  evidence  against  him  is  concerned,  is  much  better 
than  that  of  a  defendant  in  a  civil  cause,  so  that  the 
argument  founded  on  the  absence  of  contradictory 
or  explanatory  evidence  may  in  many  cases,  at  all 
events,  be  now  urged  with  more  justice  and  effect 
than  formerly.  There  are,  however,  case*  which  do 
not  afford  any  facility  of  disproof  ;  where,  even  admit- 
ting the  truth  of  the  testimony,  the  supposed  pre- 
sumption of  guilt  is  nothing  more  than  a  mistaken 
conclusion  from  facts  which  afford  no  warrant  for  the 
inference  of  guilt  ;  in  such  circumstances,  to  attempt 
disproof  is  to  attempt  to  grapple  with  a  shadow — to 
require  it,  to  exact  an  imposs.ibility  (^). 

{e)  Reg.  V.  Connor,  i  Cox,  C.  C.  233  ;  Reg.  v.  Gree?isladc,  1 1  Cox 
C.  C.  412. 

(/)  See  Archbold's  Criminal  Pleading,  22nd  ed.  p.  3845. 

(o-)  Rexv.  Looker,  pp.  242-244,  si^pra  ;  Rex  v.  Doivning^  pp.  240- 
242,  supra  ;   and  Rex   v.    Thornton.,    pp.    244-249,    supra.      Most 


^"/S  FORCE   OF    CIRCUMSTANTIAL    EVIDENCE 

(3.)  The  preceding  considerations  imply  the 
necessity  of  consistency  and  general  harmony  in  the 
testimony  of  the  different  witnesses.  All  human 
events  must  necessarily  form  a  coherent  whole  ;  and 
actual  occurrences  can  never  be  mutually  inconsis- 
tent.. If  one  of  two  witnesses  deposes  that  he  saw 
an  individual  at  London,  and  the  other  that  he  saw 
him  at  York  at  or  near  the  same  precise  moment, 
the  accounts  are  absolutely  irreconcileable,  and  one 
or  other  of  them  must  by  desion  or  by  inadvertence 
be  untrue.  A  diversity  ought  always  to  excite 
caution  and  a  careful  consideration  of  the  capacity, 
situation,  and  disposition  of  the  witnesses,  and  es- 
pecially of  the  possibility  of  confusion  from  some 
mental  emotion  or  defect.  "We  are  frequently  mis- 
taken," said  Lord  Chief  Baron  Pollock,  *'  even  as  to 
what  we  may  suppose  we  see  ;  and  still  oftener  are 
we  mistaken  as  to  that  which  we  suppose  we 
hear "  [/i).  Lord  Clarendon  relates  that,  in  the 
alarm  created  by  the  Fire  of  London,  so  terrified 
were  men  with  their  own  apprehensions,  that  the 
inhabitants  of  a  whole  street  ran  away  in  a  great 
tumult,  upon  the  rumour  that  the  French  were  march- 
ing at  the  other  end  of  it  (/).  The  same  historian 
has  given  another  anecdote  relating  to  that  great 
calamity,  too  instructive  as  applicable  to  this  subject 
to  be  omitted.     A  servant  of  the  Portuouese  am- 

o 

prisoners,  however,  must  still  labour  under  many  difficulties  and 
disadvantages,  some  of  which — such  as  ignorance  and  want  of  means 
— are  practically  irremediable.  They  can  only  be  reduced  to  a 
minimum  by  that  ceaseless  watchfulness  to  which  every  criminal 
judge  should  strive  to  attain. 

(A)  In  Heg.  V.  McDuiing  and  Wife,  C.  C.  C,  Oct.  1849. 

{£)  Life  and  Continuation,  vol.  iii.  p.  91  (Oxford  ed.,  1827). 


IN    PARTICULAR    CASES.  379 

bassador  was  seized  by  the  populace  and  pulled 
about,  and  very  much  ill-used,  upon  the  accusation  of 
a  substantial  citizen,  who  was  ready  to  take  his  oath 
that  he  saw  him  put  his  hand  in  his  pocket,  and 
throw  a  fire-ball  into  a  house,  which  immediately 
burst  into  flames.  The  foreigner,  who  could  not 
speak  English,  heard  these  charges  interpreted  to 
him  with  amazement.  Being  asked  what  it  was 
that  he  pulled  out  of  his  pocket,  and  what  it  was  he 
threw  into  the  house,  he  answered  that  he  did 
not  think  he  had  put  his  hand  into  his  pocket,  but 
that  he  remembered  very  well  that  as  he  walked  in 
the  street  he  saw  a  piece  of  bread  upon  "the  ground, 
which  he  took  up  and  laid  upon  a  shelf  in  the  next 
house,  according  to  the  custom  of  his  country  ; 
which,  observes  a  learned  writer  (k),  was  so  strong, 
that  the  King  of  Portugal  himself  would  have  acted 
with  the  same  scrupulous  regard  to  general  economy. 
Upon  searching  the  house,  the  bread  was  found  just 
within  the  door,  upon  a  board  as  described  ;  and  the 
house  on  fire  was  two  doors  beyond  it,  the  citizen 
having  erroneously  concluded  it  to  be  the  same; 
"which,"  says  Lord  Clarendon,  "was  very  natural 
in  the  fright  that  all  men  were  in "  (/). 

But  variations  in  the  relations  by  different 
persons  of  the  same  transaction  or  event,  in  respect 
of  unimportant  circumstances,  are  not  necessarily  to 
be  regarded  as  indicative  of  fraud  or  falsehood, 
provided  there  be  substantial  agreement  in  other 
respects.     True    strength  of  mind  consists    in    not 

{k)  Wooddeson's  Lect.  on  the  Laws  of  England,  vol.  iii.  p.  299. 
(/)  Life  and  Continuation,  vol.  iii.  p.  87  (Oxford  ed.  1827). 


380  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE 

allowing  the  judgment,  when  founded  upon  con- 
vincing evidence,  to  be  disturbed  because  there  are 
immaterial  discrepancies  which  cannot  be  reconciled. 
When  the  vast  inherent  differences  in  individuals 
with  respect  to  natural  faculties  and  acquired  habits 
of  accurate  observation,  faithful  recollection,  and 
precise  narration,  and  the  important  influence 
of  intellectual  and  moral  culture,  are  duly 
considered,  it  will  not  be  thought  surprising  that 
entire  agreement  is  seldom  found  amongst  a  number 
of  witnesses  as  to  all  the  collateral  incidents  of  the 
same  principal  event.  Lord  Ellenborough  said  that 
where  there  was  a  general  accordance  of  all  material 
circumstances  the  credit  of  the  story  as  a  whole  was 
rather  confirmed  than  weakened  by  minute  diversi- 
ties in  the  evidence  ;  that  such  trivial  discrepancies 
gave  it  the  advantage  which  belongs  to  an  artless  and 
unartificial  tale  ;  and  that  minute  variances  exclude 
the  idea  of  any  uniform  contrivance  and  design  in  the 
variation,  for  where  it  is  an  artful  and  prepared  story 
the  parties  agree  in  the  minutest  facts  as  well  as  in 
the  most  important  (w).  "  I  know  not,"  says  Paley, 
•'  a  more  rash  or  unphilosophical  conduct  of  the 
understanding  than  to  reject  the  substance  of  a  story 
by  reason  of  some  diversity  in  the  circumstances 
with  which  it  is  related.  The  usual  character  of 
human  testimony  is  substantial  truth  under  circum- 
stantial variety.  That  is  what  the  daily  experience 
of  courts  of  justice  teaches.  When  accounts  of  a 
transaction  come  from  the  mouths  of  different 
witnesses,  it  is  seldom  that  it  is  not  possible  to  pick 

(;;/)  Rex  v.  Lord  Cochraiic  and  ot/iers,   18 14,  Shorthand  Report  by 
Gurney,  p.  456.     See  p.  99,  supra. 


IN    PARTICULAR    CASES.  38 1 

out  apparent  or  real  inconsistencies  between  them. 
These  circumstances  are  studiously  displayed  by  an 
adverse  pleader,  but  oftentimes  with  little  impression 
upon  the  minds  of  the  Judges.  On  the  contrary,  a 
close  and  minute  agreement  induces  the  suspicion  of 
confederacy  and  fraud  "  (h). 

Instances  of  discrepancy  as  to  the  minor  attendant 
circumstances  of  historical  events  are  numberless. 
Lord  Clarendon  relates  that  the  Marquis  of  Argyle 
was  condemned  to  be  hanged,  and  that  the  sentence 
was  performed  the  same  day,  Burnet,  Woodrow, 
and  Echard,  writers  of  good  authority,  who  lived 
near  the  time,  state  that  he  was  beheaded,  though 
condemned  to  be  hanged,  and  that  the  sentence  was 
pronounced  on  Saturday  and  carried  into  effect  on 
the  Monday  following  ({?).  Charles  II.,  after  his 
flight  from  Worcester,  has  been  variously  stated  to 
have  embarked  at  Brighthelmstone,  and  at  New 
Shoreham  (/).  Clarendon  states  that  the  royal 
standard  was  erected  about  six  o'clock  of  the 
evening  of  the  25th  of  August,  "  a  very  stormy  and 
tempestuous  day  "  ;  whereas  other  contemporary 
historians  variously  state  that  it  was  erected  on  the 
22nd  and  the  24th  of  that  month  (1^).  By  some 
historians  the  death  of  the  Parliamentary  leader 
Pym  is  stated  to  have  taken  place  in  the  month  of 

(«)  Paley's  Ev.  P.  iii.  c.  i.     See  Appendix,  p.  424,  infra. 

ip)  Compare  Clarendon's  Life  and  Continuation,  vol.  ii.  p.  266 
(Oxford  ed.,  1827),  and  Paley's  Ev.  P.  iii.  c.  i. 

{p)  6  Hist,  of  Reb.  541  ;  Lingard's  Hist,  of  Eng.  vol.  xi.  c.  L 
p.  98. 

(jj)  3  Hist,  of  Reb.  190  ;  Rushworth's  Collection,  part  iii.  vol.  L 
p.  783  (4th  volume)  ;  Ludlow's  Memoirs,  p.  17. 


382  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE 

May,  1643  (r);  while  by  others  it  is  said  to  have 
occurred  in  the  following  year.  To  come  nearer 
to  our  own  times,  the  author  of  a  celebrated  bio- 
graphical memoir  relates  that,  after  the  Rebellion 
of  1745,  three  lords  were  executed  at  Tower-hill; 
whereas  it  is  well  known  that  two  only  underwent 
that  doom,  the  third,  Lord  Nithsdale,  having 
by  the  devotion  of  his  wife  effected  his  escape 
the  night  before  his  intended  execution  (5).  It  is 
remarkable  that  contemporary  and  early  writers 
have  stated  the  lady  in  question  to  have  been  his 
mother.  Such  discrepancies  never  excite  a  serious 
doubt  as  to  the  truth  of  the  principal  facts  with 
which  they  are  connected,  unless  they  can  be  traced 
to  the  operation  of  prejudice  or  some  other  sinister 
motive  (/). 

Still  less  are  mere  omissions  to  be  considered  as 
necessarily  casting  discredit  upon  testimony  which 
stands  in  other  respects  unimpeached  and  unsus- 
pected. Omissions  are  generally  capable  of  ex- 
planation by  the  consideration  that  the  mind  may 
be  so  deeply  impressed  with,  and  the  attention  so 
riveted  to,  a  particular  fact,  as  to  withdraw  attention 

(r)  Whitelock's  Memorials,  69  ;  4  Hist,  of  Reb.  436  ;  7  Hume's 
Hist.  540,  ed.  i8i8  ;  Godwin's  Hist,  of  the  Commonwealth,  vol.  i.  p.  16 
and  footnote. 

(s)  Coxe's  Mem.  of  Walpole,  vol.  i.  p.  73. 

(/)  See  in  4  Clarendon's  Hist.  436,  a  remarkable  instance  01 
historical  dishonesty.  He  states  that  Pym  died  of  a  loathsome  disease, 
morbus  pediciilosiis^  evidently  with  the  design  of  propagating  the 
notion  that  it  was  "  a  mark  of  divine  vengeance  "  (7  Hume's  Hist.  540) ; 
whereas  he  must  have  known  that  his  corpse  was  exposed  to  public 
view  for  several  days  before  it  was  interred,  in  confutation  of  this 
calumnious  statement.     (Ludlow's  Memoirs,  p.  35.) 


IN    PARTICULAR    CASES.  383 

from  concomitant  circumstances,  or  prevent  It  from 
taking  note  of  what  is  passing.  It  has  been  justly 
remarked  that,  "upon  general  principles,  affirmative 
is  better  than  negative  evidence.  A  person  de- 
posing to  a  fact,  which  he  states  he  saw,  must  either 
speak  truly,  or  must  have  invented  his  story,  or  it 
must  have  been  sheer  delusion.  Not  so  with  neofa- 
tive  evidence  ;  a  fact  may  have  taken  place  in  the 
very  sight  of  a  person  who  may  not  have  observed 
it ;  and  if  he  did  observe  it,  may  have  forgotten  it " 
(?/).  The  phenomenon  called  the  Northern  Lights 
not  recorded  to  have  been  seen  in  the  British  is 
Islands  before  the  commencement  of  the  last  cen- 
tury (,r).  Negative  evidence  is  therefore  regarded 
as  of  little  or  no  weight  when  opposed  to  affirmative 
evidence  of  credible  persons.  Sometimes,  however, 
the  non-relation  of  particular  facts  amounts  to  the 
suppressio  veri,  which  in  point  of  moral  guilt  may 
be  equal  to  positive  mendacity,  and  destructive  of 
all  claim  to  credit  {y). 

Section  3. 

cases  in  illustration  of  the  force  of 
circumstantial  evidence. 

Many  remarkable  cases  of  this  nature  have  been 
given  in  the  preceding  pages,  in  exemplification  of 

{u)  Sir  Herbert  Jenner,  in  Chambers  v.  The  Queen' s  Proctor^  2  Curt, 
at  p.  434. 

{x)  Whately's  Introd.  Less,  on  Christ.  Ev.  45. 

(j)  Grafton,  who  was  printer  to  Queen  Ehzabeth,  in  his  Chronicles, 
pubHshed  in  1562,  in  writing  the  history  of  King  John,  has  made  no 
mention  of  Magna  Charta  ;  perhaps  he  considered  that  his  silence 
might  be  deemed  complimentary  to  that  arbitrary  princess. 


384  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

some  specific  doctrine  or  object  ;  to  these  will  now 
be  added,  as  an  appropriate  commentary  upon  the 
discussion  of  the  scientific  principles  governing  the 
reception  and  estimate  of  circumstantial  evidence, 
some  striking  examples  of  the  force  of  a  cumulation 
of  moral  and  mechanical  facts. 

(t.)  In  the  autumn  of  1786  a  young  woman,  who 
lived  with  her  parents  in  a  remote  district  in  Kirk- 
cudbright, was  one  day  left  alone  in  the  cottage, 
her  parents  having  gone  out  to  the  harvest  field. 
On  their  return  home,  a  little  after  mid-day,  they 
found  their  daughter  murdered,  with  her  throat 
cut  in  a  shocking  manner.  The  circumstances  in 
which  she  was  found,  the  character  of  the  deceased, 
and  the  appearance  of  the  wound,  all  concurred  in 
excluding  any  presumption  of  suicide  ;  while  the 
surgeons  who  examined  the  wound  were  satisfied 
that  it  had  been  inflicted  by  a  sharp  instrument, 
and  by  a  person  who  must  have  held  the  instru- 
ment in  his  left  hand.  Upon  the  body  being 
opened  it  appeared  that  the  girl  was  some  months 
gone  with  child  ;  and  on  examination  of  the  ground 
about  the  cottage,  footsteps  were  discovered  of  a 
person  who  had  seemingly  been  running  hastily 
from  the  cottage,  by  an  indirect  road  through  a 
quagmire  or  bog  in  which  there  were  stepping- 
stones.  It  appeared,  however,  that  the  person,  in 
his  haste  and  confusion,  had  slipped  his  foot  and 
stepped  into  the  mire,  by  which  he  must  have  been 
wet  nearly  to  the  middle  of  the  leg.  The  prints  of 
the  footsteps  were  accurately  measured,  and  an 
exact   impression    taken    of  them ;   they   appeared 


CASES    IN    ILLUSTRATION.  385 

to  be  those  of  a  person  who  must  have  worn 
shoes  the  soles  of  which  had  iron  knobs  or  nails 
in  them — a  circumstance  common  in  that  part  of 
the  country — and  had  been  newly  mended.  Along 
the  track  of  the  footsteps,  and  at  certain  intervals, 
drops  of  blood  were  discovered  ;  and  on  a  stile  or 
small  gateway,  near  the  cottage  and  in  the  line  of 
the  footsteps,  some  marks  resembling  those  of  a 
hand  which  had  been  bloody.  Not  the  slightest 
suspicion  at  this  time  attached  to  any  particular 
person,  nor  was  it  even  suspected  who  might  be  the 
father  of  the  child  of  which  the  girl  was  pregnant. 

At  the  funeral  a  number  of  persons  of  both 
sexes  attended,  and  the  Stewart- depute  thought 
it  the  fittest  opportunity  of  discovering  if  possible 
the  murderer ;  conceiving  rightly  that,  to  avoid 
suspicion,  whoever  he  was,  he  would  not  on  that 
occasion  be  absent.  With  this  view  he  called 
together  after  the  interment  the  whole  of  the  men 
who  were  present,  being  about  sixty  in  number. 
He  caused  the  shoes  of  each  of  them  to  be  taken  off 
and  measured  ;  and  one  of  the  shoes  was  found  to 
resemble,  pretty  nearly,  the  impression  of  the  foot- 
steps near  to  the  cottage.  The  wearer  of  the  shoe 
was  the  schoolmaster  of  the  parish  ;  which  led  to  a 
suspicion  that  he  must  have  been  the  father  of  the 
child,  and  had  been  guilty  of  the  murder  to  save  his 
character.  On  a  closer  examination,  however,  the 
shoe  proved  to  be  pointed  at  the  toe,  whereas  the 
impression  of  the  footstep  was  round  at  that  part. 
The  measurement  of  the  rest  went  on,  and  after 
nearly  the  whole  number  had  been  gone  through 
one  shoe  at  length  was  found  which   corresponded 

C.E.  C  C 


386  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

exactly  with  the  impression  in  dimensions,  shape 
of  the  foot,  form  of  the  sole,  and  the  number  and 
position  of  the  nails. 

William  Richardson,  the  young"  man  to  whom  the 
shoe  belonged,  on  being  asked  where  he  was  the 
day  the  deceased  was  murdered,  replied,  seemingly 
without  embarrassment,  that  he  had  been  all  that 
day  employed  at  his  master's  work,  a  statement 
which  his  master  and  fellow-servants,  who  were 
present,  confirmed.  This  confirmation  so  far  re- 
laxed suspicion  that  a  warrant  of  commitment  was 
not  then  granted  ;  but  some  circumstances  occur- 
ring a  few  days  afterwards  having  a  tendency  to 
excite  it  anew,  the  young  man  was  apprehended 
and  lodged  in  gaol.  Upon  his  examination  he 
acknowledged  that  he  was  left-handed  ;  and  some 
scratches  being  observed  on  his  cheek,  he  said  he 
had  got  them  when  pulling  nuts  in  a  wood  a  few 
days  before.  He  still  adhered  to  what  he  had  said 
of  his  having  been  on  the  day  of  the  murder  em- 
ployed constantly  at  his  master's  work,  at  some  dis- 
tance from  the  place  where  the  deceased  resided  ; 
but  in  the  course  of  the  inquiry  it  turned  out  that 
he  had  been  absent  from  his  work  about  half  an 
hour  (the  time  being  distinctly  ascertained)  in  the 
course  of  the  forenoon  of  that  day  ;  that  he  called  at 
a  smith's  shop,  under  the  pretence  of  wanting  some- 
thing, which  it  did  not  appear  he  had  any  occasion 
for  ;  and  that  this  smith's  shop  was  in  the  way  to 
the  cottage  of  the  deceased.  A  young  girl,  who 
was  some  hundred  yards  from  the  cottage,  said  that 
about  the  time  the  murder  was  committed  (which 
corresponded  with    the  time   that    Richardson  was 


CASES    IN    ILLUSTRATION.  387 

absent  from  his  fellow-servants)  she  saw  a  person 
exactly  like  him  in  dress  and  appearance  running 
hastily  toward  the  cottage,  but  did  not  see  him 
return,  though  he  might  have  gone  round  by  a 
small  eminence  which  would  intercept  him  from  her 
view,  and  which  was  the  very  track  where  the  foot- 
steps had  been  traced. 

His  fellow-servants  now  recollected  that  in  the  fore- 
noon of  that  day  they  were  employed  with  Richard- 
son in  driving  their  master's  carts  ;  and  that  when 
passing  by  a  wood,  which  they  named,  he  said  that  he 
must  run  to  the  smith's  shop  and  would  be  back  in  a 
short  time.  He  then  left  his  cart  under  their  charo-e  ; 
they  waited  for  him  about  half  an  hour  (which  one  of 
the  servants  ascertained  by  having  at  the  time  looked 
at  his  watch),  and  remarked  on  his  return  that  he  had 
been  longer  absent  than  he  said  he  would  be,  to 
which  he  replied  that  he  stopped  in  the  wood  to 
gather  some  nuts.  They  observed  at  this  time  one 
of  his  stockings  wet  and  soiled,  as  if  he  had  stepped 
into  a  puddle  ;  on  which  they  asked  where  he  had 
been.  He  said  he  had  stepped  into  a  marsh,  the 
name  of  which  he  mentioned  ;  on  which  his  fellow- 
servants  remarked,  "  that  he  must  have  been  either 
mad  or  drunk  if  he  had  stepped  into  that  marsh,  as 
there  was  a  footpath  which  went  along  the  side  of 
it."  It  then  appeared,  by  comparing  the  time  he 
was  absent  with  the  distance  of  the  cottage  from 
the  place  where  he  had  left  his  fellow-servants,  that 
he  might  have  gone  there,  committed  the  murder, 
and  returned  to  them.  A  search  was  then  made 
for  the  stockings  he  had  worn  that  day,  which  were 
found   concealed    in    the    thatch    of  the   apartment 

c  c  2 


2,SS  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

where  he  slept,  and  appeared  to  be  much  soiled, 
and  to  have  some  drops  of  blood  on  them.  He 
accounted  for  the  blood  by  saying,  first,  that  his 
nose  had  been  bleeding  some  days  before  ;  but  it 
beincr  observed  that  he  had  worn  other  stockintrs 

o  r? 

on  that  day,  he  said  he  had  assisted  in  bleeding  a 
horse ;  it  was  proved,  however,  that  he  had  not 
done  so,  but  had  stood  at  such  a  distance  that  the 
blood  could  not  have  reached  him.  On  examininof 
the  mud  or  sand  upon  the  stockings,  it  was  found 
to  correspond  precisely  with  that  of  the  mire  or 
puddle  adjoining  to  the  cottage,  which  was  of  a  very 
particular  kind,  none  other  of  the  same  kind  being 
found  in  that  neighbourhood.  It  then  came  out  that 
Richardson  had  been  acquainted  with  the  deceased, 
who  was  considered  in  the  county  as  of  weak  in- 
tellect, and  had  on  one  occasion  been  seen  with  her 
in  a  wood,  in  circumstances  that  led  to  a  suspicion 
that  he  had  had  improper  intercourse  with  her  ;  and 
on  being  taunted  with  having  such  connection  with 
one  of  her  condition,  he  seemed  much  ashamed  and 
greatly  hurt. 

It  was  proved  by  the  person  who  sat  next  to 
him  when  his  shoes  were  being  measured,  that 
he  trembled,  and  seemed  much  agitated ;  and 
that  in  the  interval  between  that  time  and  his 
being  apprehended  he  had  been  advised  to  t\y, 
but  his  answer  was,  "Where  can  I  fly  to  .-^  "  On 
the  other  hand,  evidence  was  brought  to  show 
that,  about  the  time  of  the  murder,  a  boat's  crew 
from  Ireland  had  landed  on  that  part  of  the  coast, 
near  to  the  dwelling  of  the  deceased  ;  and  it  was 
said  that  some  of  the  crew  might   have  committed 


CASES    IN    ILLUSTRATION.  389 

the  murder,  though  their  motives  for  doing  so  it 
was  difficult  to  explain,  it  not  being  alleged  that 
robbery  was  their  purpose,  or  that  anything  was 
missing  from  the  cottages  in  the  neighbourhood. 

The  prisoner  was  tried  at  Dumfries,  in  the  spring 
of  1787,  and  the  jury  by  a  great  plurality  of  voices 
found  him  guilty.  Before  his  execution  he  con- 
fessed that  he  was  the  murderer  ;  and  said  it  was 
to  hide  his  shame  that  he  committed  the  deed, 
knowing  that  the  girl  was  with  child  by  him.  He 
mentioned  also  to  the  clergyman  who  attended  him, 
where  the  knife  would  be  found  with  which  he  had 
perpetrated  the  murder  ;  and  it  was  found  accord- 
ingly in  the  place  he  described,  under  a  stone  in  a 
wall,  with  marks  of  blood  upon  it  {2). 

The  casual  discovery  of  circumstances  which 
indicated  the  existence  of  a  powerful  motive  to 
commit  the  deed — the  facts,  that  it  had  been  com- 
mitted by  a  left-handed  man,  as  the  prisoner  was 
(a  circumstance  which  narrowed  the  range  of  in- 
quiry) and  that  there  was  an  interval  of  absence 
which  afforded  the  prisoner  the  necessary  oppor- 
tunity of  committing  the  crime  ;  his  false  assertion 
that  he  had  not  been  absent  from  his  work  on  that 
day  (contradicted  as  it  was  by  witnesses  who  saw 
him  on  the  way  to  and  in  the  vicinity  of  the  scene 
of  the  murder)  amounting  to  an  admission  of  the 
relevancy  and  weight  of  that  circumstance  if  uncon- 

(z)  Rex  V.  Richardson,  Burnett's  Criminal  Law  of  Scotland,  p.  524. 
This  case  is  also  concisely  stated  in  Lockhart's  Memoirs  of  the  Life  of 
Sir  Walter  Scott  (iv,  52,  2nd  ed.  1S39);  and  it  supplied  one  of  the 
most  striking  incidents  in  "  Guy  Mannering." 


390  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

tradicted  ;  the  discovery  of  his  footsteps  near  the 
spot ;  his  agitation  at  the  time  of  the  measure- 
ment and  comparison  of  his  shoes  with  the  impres- 
sions ;  the  discovery  of  his  secreted  stockings, 
spotted  with  blood,  and  soiled  with  mire  peculiar 
to  the  vicinity  of  the  cottage ;  the  scratches  on 
his  face  ;  his  various  untrue  statements — all  these 
particulars  combine  to  render  this  a  most  satisfactory 
case  of  conviction,  and  to  exemplify  the  high  degree 
of  assurance  which  circumstantial  evidence  is  capable 
of  producing. 

(2.)  A  man  named  Patch  was  tried  for  the 
murder  of  Mr.  Isaac  Blight,  a  ship-breaker,  near 
Greenland  Dock,  Mr.  Blight  had  taken  the 
prisoner  into  his  service  in  the  year  1803.  In  July 
1805,  having  become  embarrassed  in  his  circum- 
stances he  entered  Into  a  deed  of  composition  with 
his  creditors  ;  and  in  consequence  of  the  failure  of 
this  arrangement  made  a  colourable  transfer  of 
his  property  to  the  prisoner.  It  was  afterwards 
agreed  between  them,  that  Mr.  Blight  was  to  retire 
nominally  from  the  business,  which  the  prisoner  was 
to  manage  ;  Blight  was  to  have  two-thirds  of  the 
profits,  and  the  prisoner  the  remaining  third,  for 
which  he  was  to  pay  ^1,250.  Of  this  amount,  ^250 
was  paid  in  cash,  and  a  draft,  upon  a  person 
named  Goom,  was  given  for  the  remainder,  which 
would  become  payable  on  the  1 6th  of  September  ; 
the  prisoner  representing  that  he  had  received 
the  purchase-money  of  an  estate  and  lent  it  to  Goom. 
On  the  1 6th  of  September  the  prisoner  represented 
to  Mr-  Blight's  bankers  that  Goom  could  not  take 


CASES    IN    ILLUSTRATION.  39 1 

up  the  bill,  and  withdrew  it,  substituting  his  own 
draft  upon  Goom,  to  fall  due  on  the  20th  of 
September. 

On  the  19th  of  September  Mr.  Blight  went 
to  visit  his  wife  at  Margate,  and  the  prisoner  ac- 
companied him  as  far  as  Deptford,  and  then  went 
to  London,  and  represented  to  the  bankers  that 
Goom  would  not  be  able  to  face  his  draft,  but  that 
he  had  obtained  from  him  a  note  which  satisfied 
him,  wherefore  they  were  not  to  present  it.  The 
prisoner  boarded  in  Mr.  Blight's  house,  and  the  only 
other  inmate  was  a  female  servant,  whom,  about 
eight  o'clock  on  the  same  evening  (the  19th),  he 
sent  out  to  procure  some  oysters  for  his  supper. 
During  her  absence  a  gun  or  pistol  ball  was  fired 
through  the  shutter  of  a  parlour  fronting  a  wharf 
beside  the  Thames,  where  the  family,  when  at  home, 
usually  spent  their  evenings.  It  was  low  water, 
and  the  mud  was  so  deep  that  any  person  attempt- 
ing to  escape  in  that  direction  must  have  been 
suffocated  ;  and  a  man  who  was  standing  near  the 
gate  of  the  wharf,  which  was  the  only  other  mode  of 
escape,  heard  the  report,  but  saw  no  person.  From 
the  manner  in  which  the  ball  had  entered  the 
shutter,  it  must  have  been  discharged  by  some 
person  who  was  close  to  the  shutter ;  and  the  river 
was  so  much  below  the  level  of  the  house,  that  the 
ball,  if  it  had  been  fired  from  thence,  must  have 
reached  a  much  higher  part  than  that  which  it 
struck.  The  prisoner  declined  the  offer  of  the  neigh- 
bours to  remain  in  the  house  with  him  that  night. 
On  the  following  day  he  wrote  to  inform  Mr.  Blight 
of  this  transaction,  stating  his  hope  that  the  shot  had 


392  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

been  accidental,  that  he  knew  of  no  person  who  had 
any  animosity  against  him,  that  he  wished  to  know 
for  whom  it  was  intended,  and  that  he  should  be 
ha[)py  to  hear  from  him,  but  much  more  so  to  see  him. 
Mr.  Blight  returned  home  on  the  23rd  of  Septem- 
ber, having  previously  been  to  London  to  see  his 
bankers  on  the  subject  of  the  ^1,000  draft.  Upon 
eettinof  home,  the  draft  became  the  subject  of  con- 
versation,  and  Mr.  Blight  desired  the  prisoner  to  go  to 
London  and  not  to  return  without  the  money.  Upon 
his  return  from  London  the  prisoner  and  Mr. 
Blight  spent  the  evening  in  the  back  parlour,  a 
different  one  from  that  in  which  the  family  usually 
sat.  About  eight  o'clock  the  prisoner  went  from  the 
parlour  into  the  kitchen,  and  asked  the  servant  for  a 
candle,  complaining  that  he  was  disordered.  The 
prisoner's  way  from  the  kitchen  was  through  an 
outer  door  which  fastened  by  a  spring  lock,  and 
across  a  paved  court  in  front  of  the  house,  which 
was  enclosed  by  palisades,  and  through  a  gate  over 
a  wharf,  in  front  of  that  court,  on  which  there  was  the 
kind  of  soil  peculiar  to  premises  for  breaking  up  ships, 
and  then  through  a  counting-house.  All  of  these 
doors,  as  well  as  the  door  of  the  parlour,  the  prisoner 
left  open,  notwithstanding  the  state  of  alarm  excited 
by  the  shot.  The  servant  heard  the  privy-door  slam, 
and  almost  at  the  same  moment  saw  the  flash  of  a 
pistol  at  the  door  of  the  parlour  where  the  deceased 
was  sitting,  upon  which  she  ran  and  shut  the  outer 
door  and  gate.  The  prisoner  immediately  after- 
wards rapped  loudly  at  the  door  for  admittance, 
with  his  clothes  in  disorder.  He  evinced  great 
apparent  concern  for  Mr.   Blight,  who  was  mortally 


CASES    IN    ILLUSTRATION.  393 

wounded  and  died  on  the  following  day.  From  the 
state  of  the  tide,  and  from  the  testimony  of  various 
persons  who  were  on  the  outside  of  the  premises,  no 
person  could  have  escaped  from  them. 

In  consequence  of  this  event  Mrs.  Blight  returned 
home,  and  the  prisoner,  in  answer  to  an  inquiry  about 
the  draft  which  had  made  her  husband  so  uneasy,  told 
her  that  it  was  paid,  and  claimed  the  whole  of  the 
property  as  his  own.  Suspicion  soon  fell  upon  the 
prisoner,  and  in  his  sleeping-room  was  found  a  pair 
of  stockings  rolled  up  like  clean  stockings,  but  with 
the  feet  plastered  over  with  the  sort  of  soil  found 
on  the  wharf,  and  a  ramrod  was  found  in  the  privy. 
The  prisoner  usually  wore  boots,  but  on  the  even- 
ing of  the  murder  he  wore  shoes  and  stockings.  It 
was  supposed  that,  to  prevent  alarm  to  the  deceased 
or  the  female  servant,  the  murderer  must  have 
approached  without  his  shoes,  and  afterwards  gone 
on  the  wharf  to  throw  away  the  pistol  into  the 
river.  All  the  prisoner's  statements  as  to  his 
pecuniary  transactions  with  Goom  and  his  right  to 
draw  upon  him,  and  the  payment  of  the  bill,  turned 
out  to  be  false.  He  attempted  to  tamper  with  the 
servant-girl  as  to  her  evidence  before  the  coroner, 
and  urged  her  to  keep  to  one  account ;  and  before 
that  officer  he  made  several  inconsistent  statements 
as  to  his  pecuniary  transactions  with  the  deceased, 
and  equivocated  much  as  to  whether  he  wore  boots 
or  shoes  on  the  evening  of  the  murder,  as  well  as 
to  his  ownership  of  the  soiled  stockings,  which  how- 
ever were  clearly  proved  to  be  his,  and  for  the  soiled 
state  of  which  he  made  no  attempt  to  account.  The 
prisoner  suggested  the  existence  of  malicious  feelings 


394  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

in  two  persons  with  whom  the  deceased  had  been 
on  ill  terms  ;  but  they  had  no  motive  for  doing  him 
any  injury,  and  it  was  clearly  proved  that  upon 
both  occasions  of  attack  they  were  at  a  distance. 

The  prisoner's  motive  was  to  possess  himself  of 
the  business  and  property  of  his  benefactor  ;  and  to 
all  appearance  his  falsehoods  and  duplicity  were  on 
the  point  of  being  discovered.  His  apparent  incau- 
tion  on  the  evening  of  the  murder  could  be  ac- 
counted for  after  the  preceding  alarm  by  no  other 
supposition  than  that  it  was  the  result  of  premedita- 
tion, and  intended  to  afford  facilities  for  the  execu- 
tion of  his  dark  purposes.  The  direction  of  the 
first  ball  through  the  shutter  excluded  the  possi- 
bility that  it  had  been  fired  from  any  other  place 
than  the  deceased's  own  premises  ;  and  by  a 
singular  concurrence  of  circumstances,  it  was  clearly 
proved  that  no  person  escaped  from  the  premises 
after  either  of  the  shots,  so  that  suspicion  was 
necessarily  restricted  to  the  persons  on  the  premises. 
The  occurrence  of  the  first  attack  during  the  tem- 
porary absence  of  the  servant  (that  absence  con- 
trived by  the  prisoner  himself)  ;  the  discovery  of  a 
ramrod  in  the  very  place  where  the  prisoner  had 
been,  and  of  his  soiled  stockings  folded  up  so  as  to 
evade  observation  ;  his  interference  with  one  of  the 
witnesses  ;  his  falsehoods  respecting  his  pecuniary 
transactions  with  Goom  and  with  the  deceased ; 
and  his  attempts  to  exonerate  himself  from  suspicion 
by  implicating  other  persons — all  these  cogent  cir- 
cumstances of  presumption  tended  to  show  not 
only  that  the  prisoner  was  the  only  person  who  had 
any  motive  to   destroy  the   deceased,    but   that  the 


CASES    IN    ILLUSTRATION.  395 

crime  could  have  been  committed  by  no  other  per- 
son ;  and  while  all  the  facts  were  naturally  expli- 
cable upon  the  hypothesis  of  his  guilt,  they  were 
incapable  of  any  other  reasonable  solution.  The 
prisoner  was  convicted  and  executed  [a). 

(3.)  A  respectable  farmer,  who  had  been  at  Stour- 
bridge market  on  the  i8th  of  December,  181 2,  left 
that  place  on  foot  a  little  after  four  in  the  afternoon, 
to  return  home,  a  distance  of  between  two  and 
three  miles.  About  half  a  mile  from  his  own 
house  he  was  overtaken  by  a  man  who  inquired 
the  road  for  Kidderminster  ;  and  they  walked 
together  for  two  or  three  hundred  yards,  when  the 
stranger  drew  behind  and  shot  him  in  the  back,  and 
then  robbed  him  of  about  eleven  pounds  in  money 
and  a  silver  watch.  After  lingering  ten  days,  he 
died  of  the  wound  thus  received.  The  wounded 
man  noticed  that  the  pistol  was  long  and  very 
bright,  and  that  the  robber  had  on  a  dark-coloured 
great-coat,  which  reached  down  to  the  calves  of  his 
legs.  Several  circumstances  of  correspondence  with 
the  description  given  by  the  deceased  conspired  to 
fix  suspicion  upon  the  prisoner  who  for  about  four- 
teen months  had  worked  as  a  carpenter  at 
Ombersley,  seventeen  miles  from  Stourbridge.  It 
was  discovered  that  he  had  been  absent  from  that 
place  from  the  17th  to  the  22nd  of  December  ;  that 
on  the  23rd  he  had  taken  two  boxes,  one  contain- 
ing his  working  tools  and  the  other  his  clothes,  to 
Worcester,  and  there  delivered   them  to  a  carrier, 

(a)  Surrey  Spring  Ass.  1806,  coram  Macdonald,  L.C.B.     Shorthand 
Report  by  Gurney. 


396     FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

addressed  to  John  Wood,  at  an  inn  in  London,  to 
be  left  till  called  for,  the  name  by  which  he  was 
known  being  William  Howe  ;  and  that  on  the  25th 
he  finally  left  Ombersley,  and  went  to  London. 
Upon  inquiry  at  the  inn  to  which  the  boxes  were 
directed,  it  was  found  that  a  person  answering  the 
description  of  the  prisoner  had  removed  them  in  a 
mealman's  cart  to  the  Bull  in  Bishopsgate  Street, 
and  that  on  the  5th  of  January  they  had  been  re- 
moved from  thence  in  a  cooper's  cart.  Here  all 
trace  of  the  boxes  seemed  cut  off;  but  on  the  12th 
of  January  the  police  officers  succeeded  in  tracing 
them  to  a  widow  woman's  house,  in  a  court  in  the 
same  street  ;  when,  upon  examining  the  box  which 
contained  the  prisoner's  clothes,  they  found  a  screw- 
barrel  pistol,  a  pistol-key,  a  bullet-mould,  a  single 
bullet,  a  small  quantity  of  gunp(ywder  in  a  cartridge 
and  a  fawn-skin  waistcoat  ;  which  latter  circum- 
stance was  important,  as  the  prisoner  was  seen  in 
Stourbridge  on  the  day  of  the  murder,  dressed  in  a 
waistcoat  of  that  kind.  By  remaining  concealed  in 
the  woman's  house  the  police  were  enabled  to 
apprehend  the  prisoner,  who  called  there  the  follow- 
ing night. 

Upon  his  apprehension,  he  denied  that  he 
had  ever  been  at  Stourbridge,  or  heard  of  the 
deceased  being  shot  ;  and  he  accounted  for  chang- 
ing his  name  at  Worcester  by  stating,  first,  that  he 
had  had  a  difference  with  his  fellow  work-people, 
and  afterwards  that  he  did  it  to  prevent  his  wife, 
whom  he  had  determined  to  leave,  from  beini^  able 
to  follow  him.  On  beingr  asked  where  he  was  on 
the    1 8th    of   December,    he    said    he    believed   at 


CASES    IN    ILLUSTRATION.  397 

Kidderminster,  a  town  about  six  miles  from  Stour- 
bridge. Upon  the  prisoner's  subsequent  examina- 
tion before  the  magistrates,  he  stated  that  he  was 
at  Kidderminster  on  the  17th  of  December,  and  at 
Stourbridge  on  the  i8th  (the  day  of  the  murder), 
but  that  he  was  not  out  of  the  latter  town  from  the 
time  of  his  arrival  there,  at  one  o'clock  in  the  after- 
noon until  half-past  seven  the  following  morning; 
that  in  the  afternoon  he  went  to  look  about  the 
town  for  lodgings,  and  ultimately  went  to  his 
lodgings  about  six  o'clock  in  the  evening.  The 
account  which  the  prisoner  thus  gave  of  himself 
was  proved  to  be  a  tissue  of  falsehoods.  lie  had 
been  seen  by  several  witnesses  between  four  and 
five  in  the  afternoon  of  the  day  in  question,  on  the 
road  leading  from  Stourbridge  toward,  and  not  far 
from,  the  spot  where  the  deceased  was  shot,  and 
about  half-past  five  he  was  seen  going  in  great 
haste  in  the  opposite  direction,  toward  Stourbridge. 
He  afterwards  called  at  two  public-houses  at  Stour- 
bridge— at  the  first  of  them  about  six  o'clock,  and 
at  the  other  about  nine  the  same  evening  ;  at  both 
of  which  the  attack  and  robbery  were  the  subjects 
of  conversation,  in  which  the  prisoner  joined  ;  and 
he  was  distinctly  spoken  to  as  having  worn  a  fawn- 
skin  waistcoat.  On  the  21st  of  December  the 
prisoner  sold  at  Warwick  a  watch  of  which  the 
deceased  had  been  robbed,  stating  it  to  be  a  family 
watch.  A  letter  was  sent  by  the  prisoner  while  in 
gaol  to  his  wife  :  she  being  unable  to  read,  had 
got  a  neighbour  to  read  it  to  her.  It  contained 
a  direction  to  remove  some  thinors  concealed  in  a 
rick  near  Stourbridge ;  where,    upon  search  being 


398     FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

made,  were  discovered  a  glove,  containing  three 
bullets,  and  a  screw-barrel  pistol,  the  fellow  to  that 
found  in  the  prisoner's  box.  A  gunmaker  deposed 
that  the  bullet  extracted  from  the  wound  had  been 
discharged  from  a  screw-barrel  pistol,  such  as  that 
produced,  and  that  that  bullet  and  the  bullet  found  in 
the  prisoner's  box  had  been  cast  in  the  same  mould. 
The  prisoner's  denial,  on  his  apprehension,  that 
he  had  ever  been  at  Stourbridge,  or  heard  of  the 
act,  denoted  a  consciousness  of  the  fatal  effect  of 
any  evidence  tending  to  establish  the  fact  of  his 
presence  there.  The  discovery  of  a  fawn-skin 
waistcoat  in  his  possession,  corresponding  with  that 
worn  by  him  when  seen  at  Stourbridge  on  the 
evening  of  the  murder  ;  his  possession  and  dis- 
posal of  the  deceased's  watch  within  three  days  after 
the  robbery  ;  his  false  statement  that  it  was  a  family 
watch  ;  the  correspondence  between  the  weapon 
found  in  the  rick  and  that  found  in  the  prisoner's 
box,  and  between  the  bullet  extracted  from  the 
wound  and  that  found  in  the  same  box,  and  the 
peculiarity  that  the  deceased  had  been  killed  by  a 
wound  from  a  screw-barrelled  pistol — all  these  cir- 
cumstances placed  the  guilt  of  the  prisoner  beyond 
any  reasonable  doubt,  and  there  was  no  possibility 
of  referring  them  to  casual  and  accidental  coinci- 
dence, or  of  explaining  them  upon  any  hypothesis 
compatible  with  his  innocence.  He  was  convicted, 
and  before  his  execution  confessed  his  guilt  {p). 

(4.)  A  foreigner,  named  Courvoisier,  was  tried  at 
the    Central    Criminal    Court    (June  1840)    for    the 

{b)  Rex\.  William  Howe^  Stafford  Spring  Ass.  iSi^,cora;/i  Bay  ley,  J, 


CASES    IN    ILLUSTRATION.  399 

murder  of  Lord  William  Russell,  an  elderly  man, 
seventy-five  years  of  age,  a  widower,  who  lived 
in  Norfolk  Street,  Park  Lane.  The  deceased's  house- 
hold consisted  of  the  prisoner,  who  had  been  in  his 
service  as  valet  about  five  weeks,  and  of  a  house- 
maid and  cook  who  had  lived  with  him  three  years, 
besides  a  coachman  and  groom  who  did  not  live  in 
the  house.  On  the  6th  of  May  the  female  servants 
went  to  bed  as  usual,  and  the  housemaid  on  going 
to  bed  lighted  a  fire  and  set  a  rush-licrht  in  her 
master's  bedroom,  which  presented  its  usual  appear- 
ance ;  the  prisoner  remained  sitting  up  to  warm  his 
bed.  The  housemaid  rose  about  half-past  six  on 
the  following  morning,  and  on  going  downstairs 
knocked,  as  usual,  at  the  prisoner's  door.  At  her 
master's  door  she  noticed  the  warming-pan,  which 
was  usually  taken  downstairs  ;  on  going  into  a  back 
drawinof-room  she  found  the  drawers  of  her  master's 
desk  open  and  his  bunch  of  keys  lying  on  the  carpet  ; 
a  screw-driver  lay  on  a  chair.  In  the  hall  his  Lord- 
ship's cloak  was  found  neatly  folded  up,  together 
with  a  bundle,  containing  a  variety  of  valuable 
articles,  most  of  them  portable,  such  as  a  thief 
would  ordinarily  put  in  his  pocket  instead  of  de- 
liberately packing  up.  In  the  dining-room  she 
found  several  articles  of  plate  scattered  about.  The 
street-door,  though  shut,  was  unfastened,  but  the 
testimony  of  the  police  who  passed  the  house  many 
times  in  the  night  rendered  it  very  unlikely  that 
any  person  had  left  it  in  that  direction. 

Alarmed  by  these  appearances,  the  housemaid 
called  the  prisoner,  and  found  him  dressed,  though 
only    a   few    minutes    had    elapsed   since   she    had 


400  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

knocked  at  his  door — a  much  shorter  time  than  he 
usually  took  to  dress.  They  went  together  down- 
stairs ;  and  after  examining  the  state  of  the  dining- 
room  and  the  prisoner's  pantry,  where  the  cupboard 
and  drawers  were  all  found  opened,  they  proceeded 
to  their  master's  bed-room,  where  he  was  found 
with  his  throat  cut,  in  a  manner  which  must  have 
produced  instant  death.  His  Lordship  usually 
placed  his  watch  and  rings  on  his  dressing-- table  ; 
but  they  had  been  taken  away,  and  his  note-cases, 
in  one  of  which  the  prisoner  stated  that  he  had  seen 
a  ;^io  and  a  ^5  note  a  few  days  before,  were  open 
and  emptied  of  their  contents.  A  book  was  found 
on  the  floor,  and  his  Lordship's  spectacles  lay  upon 
it,  and  there  was  a  candlestick  about  four  or  five 
feet  from  the  bed,  with  the  candle  burned  to  the 
socket.  These  articles  appeared  to  have  been  so 
placed  to  create  the  impression  that  his  Lordship 
had  been  murdered  while  reading  ;  but  he  was  not 
accustomed  to  read  in  bed,  and  only  so  much  of  the 
rush-light  was  burned  as  would  have  been  consumed 
in  about  an  hour  and  a  half,  thouo^h  the  candle  was 
completely  burned  away.  The  prisoner  stated  that 
he  left  his  master  reading.  Upon  the  door  of  the 
prisoner's  pantry,  leading  to  a  back  area,  were 
marks  as  if  it  had  been  broken  into,  and  the 
prisoner  suggested  that  the  thieves  had  entered  by 
that  door  ;  but  the  marks  appeared  to  have  been 
made  from  within,  and  none  of  them  had  been  made 
by  the  application  of  sufficient  force  to  break  open 
the  door ;  the  bolts  appeared  not  to  have  been  shot 
at  the  time,  and  the  socket  of  one  of  them  had  been 
wrenched  off  when  the  door  was  open.     The  marks 


CASES    IN    ILLUSTRATION.  4OI 

on  this  door  appeared  to  have  been  made  with  a 
bent  poker  found  in  the  pantry.  It  was  clear  that 
no  person  had  entered  the  premises  from  the  rear, 
since,  in  one  direction,  they  could  have  been  ap- 
proached only  by  passing  over  a  wall  covered  with 
dust,  which  would  have  retained  the  slightest  im- 
pression ;  and  in  the  other,  anyone  must  have  passed 
over  some  tiling  which  was  so  old  and  perished  as 
necessarily  to  have  been  damaged  by  the  passing 
of  any  person  over  it  ;  while  from  the  testimony  of 
the  police  it  was  equally  clear  that  no  person  had 
escaped  through  the  front  door. 

For  several  days  the  missing  articles  could  not 
be  found,  and  the  case  appeared  to  be  wrapped  in 
impenetrable  mystery  ;  but  at  length,  upon  a  stricter 
search,  his  Lordship's  rings  and  Waterloo  medal, 
five  sovereigns,  and  a  ;^io  note,  the  latter  of  which 
had  been  removed  from  his  note-case,  were  found 
concealed  behind  the  skirting-board  in  the  prisoner's 
pantry  ;  and  beneath  the  leaden  covering  of  a  sink 
was  found  his  Lordship's  watch,  and  several  other 
articles  were  also  found  in  other  parts  of  the  same 
room.  But  a  quantity  of  plate  which  had  been 
stolen  still  remained  undiscovered,  notwithstanding 
the  most  diligent  efforts  to  discover  it ;  and  its  non- 
production  was  the  only  circumstance  which  gave 
any  apparent  countenance  to  the  possibility  that  the 
house  had  been  robbed  on  the  night  of  the  murder, 
by  parties  who  had  escaped.  The  mystery  was 
cleared  up  however  in  a  remarkable  manner,  during 
the  progress  of  the  trial.  About  a  fortnight  before 
the  murder,  the  prisoner  had  left  a  parcel  in  the  care 
of  an  hotel-keeper  with  whom  he  had  formerly  lived 

C.E.  D  D 


402  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

as  waiter,  whose  curiosity  was  aroused  by  reading  in 
a  newspaper  a  suggestion  that,  as  the  prisoner  was 
a  foreigner,  he  had  probably  left  the  plate  at  one  of 
the  foreign  hotels  in  London.  He  communicated 
with  the  police,  and  the  parcel  was  o})ened  and  found 
to  contain  the  missing  plate.  The  prisoner  had  been 
known  in  this  situation  only  by  his  Christian  name  ; 
this  circumstance  accounted  for  the  fact  that  sus- 
picion had  not  been  sooner  excited  by  the  narrative 
ofthemurder  and  robbery  which  had  appeared  in  the 
daily  journals.  This  discov^ery,  in  conjunction  with 
the  simulated  appearances  of  external  violence  and 
robbery,  and  the  conclusive  evidence  that  the 
premises  had  not  been  entered  from  without,  made 
it  certain  that  the  robbery  of  the  plate  and  the 
murder  had  been  committed  by  one  of  the  inmates  ; 
while  the  manner  and  place  of  concealment,  and 
the  artless  and  satisfactory  account  given  by  the 
female  servants,  rendered  it  equally  clear  that  the 
prisoner  and  he  alone  could  have  been  the  murderer. 
He  made  a  confession  of  his  guilt,  and  was  exe- 
cuted pursuant  to  his  sentence  {d). 

(5.)  Perhaps  one  of  the  most  extraordinary  civil 
causes,  in  which  the  truth  has  been  made  manifest  by 
the  force  of  circumstantial  evidence,  was  "  The  Great 
Matlock  Will  Case "  (e),  tried  before  Lord  Chief 
Justice  Cockburn  in  February  1864.  The  history  of 
the  litigation  is  somev.^hat  remarkable.  It  related  to 
the  validity  of  three  codicils  to  a  will  of  one  George 

(d)  Sessions  Papers,  1840  ;  2  Townsend's  Modern  State  Trials,  244. 

(e)  Cresswell  a?id  others  v.  Jncksoti  and  another  ;  contemporaneous 
report  published  in  1864,  Derby,  Richard  Keene.  The  Editor  of 
the  present  volume  was  one  of  the  counsel  in  the  case. 


CASES    IN    ILLUSTRATION.  403 

Nuttall,  and  a  suit  was  instituted  in  Chancery  to 
establish  them.  An  issue  was  directed  by  the  Master 
of  the  Rolls  (y),  in  which  the  plaintiffs  asserted  and 
the  defendants  denied  that  the  codicils  were  genuine. 
It  came  on  for  trial  in  the  first  instance  before  Lord 
Chief  Justice  Erie,  at  the  Derby  summer  assizes  in 
1859,  when  the  jury  pronounced  in  favour  of  the 
codicils.  Not  being  satisfied  with  the  verdict,  the 
Master  of  the  Rolls  directed  a  second  trial,  which 
took  place  before  Lord  Chief  Baron  Pollock,  at  the 
Derby  spring  assizes  i860,  when  the  jury  found 
against  the  codicils.  The  Master  of  the  Rolls  was 
satisfied  with  this  verdict,  and  refused  a  new  trial. 
Application  was  made  to  the  Lords  Justices,  who 
were  divided  in  opinion.  Lord  Justice  Turner  being 
in  favour  of,  and  Lord  Justice  Knight  Bruce  against, 
granting  a  new  trial.  The  plaintiffs  appealed  to 
the  House  of  Lords.  The  case  was  heard  by  three 
of  the  Law  Lords.  The  Lord  Chancellor  (Lord 
Cranworth)  and  Lord  Wensleydale  were  of  opinion 
that  a  third  trial  was  desirable,  Lord  Chelmsford 
was  of  the  contrary  opinion.  Accordingly,  the 
application  for  a  new  trial  was  granted,  and  the 
trial  was  ordered  to  take  place  before  the  Lord  Chief 
Justice  of  England  (Sir  Alexander  Cockburn)  and 
a  special  jury  of  the  City  of  London.  The  case  was 
begun  on  the  2  2 nd  of  February  1 864,  and  lasted  eight 
days.  It  resulted  in  a  verdict— not  afterwards  dis- 
turbed, although  a  motion  was  again  made  for  a  new 
trial — for  the   df^fendants. 

The   testator,    George    Nuttall,   lived  and  died  a 
bachelor   at    Matlock,    and  was    possessed   of  real 

(/)  Sir  John  Romilly. 

D  D  2 


404    FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

and  personal  estate  worth  in  the  aggregate  some- 
where about  ^60,000.  He  was  a  land  surveyor, 
and  had  been  in  good  practice,  and  though  not  of 
scholarly  education,  was  very  intelligent,  widely 
self-instructed  and  an  excellent  man  of  business. 
He  lived  a  somewhat  secluded  life,  and  had  no  near 
or  intimate  relations.  The  only  person  besides 
himself  who  lived  in  the  house  was  Catherine 
Marsden  his  housekeeper.  Her  sister  was  the  wife 
of  John  Else,  who  as  the  person  chiefly  benefiting 
by  the  codicils  figures  largely  in  this  story.  Else 
also  lived  at  Matlock,  and  was  assistant-overseer  and 
County  Court  bailiff  there.  He  was  in  a  great 
measure  brought  up  by  the  testator,  and  from  boy- 
hood had  been  employed  to  do  writing  and  copying 
for  him.  The  testator  had  two  styles  of  handwrit- 
ing, a  free  and  running  hand,  like  that  of  an  edu- 
cated man,  and  a  more  formal  and  clerk-like  hand. 
Else's  writing  so  closely  resembled  Mr.  Nuttall's 
more  formal  hand  that  persons  who  were  in  the 
habit  of  corresponding  upon  business  matters  with 
Mr.  Nuttall  were  often  unable  to  tell  whether  he  or 
Else  had  written  the  body  of  a  letter. 

The  testator  died  on  the  7th  of  March  1856.  His 
will  had  been  drafted  by  his  attorney,  Mr.  Newbold, 
and  had  been  copied  out  by  his  own  hand  in  dupli- 
cate. Immediately  after  his  death,  one  of  these  holo- 
graph copies  was  found  in  a  cupboard  in  his  room. 
It  was  dated  15th  September  1  854,  and  under  it  John 
Nuttall,  a  distant  cousin  of  the  testator,  took  the 
bulk  of  the  real  estate,  and  was  residuary  legatee  of 
the  personalty.  Amongst  many  gifts  was  one  to 
Catherine    Marsden  of  the  house   for    life,    of   the 


CASES    IN    ILLUSTRATION.  405 

furniture,  and  of  £200  a  year.  To  Else  was  left 
tithe  property,  which,  after  making  allowance  for 
certain  charges,  amounted  to  about  ^140  a  year.  On 
the  day  of  the  funeral  a  further  search  was  made  in 
the  cupboard,  whereupon  a  second  holograph  copy 
of  the  will  was  found  in  a  packet  sealed  and  marked 
"  This  is  my  rigt  [sic]  will."  This  duplicate  bore  the 
same  date  as  the  will  first  found,  and  was  similar  to 
it  in  every  particular,  except  that  the  duplicate  had 
an  interlineation  by  which  Else  was  to  have  a  charge 
of  ^100  per  annum,  and  Catherine  Marsden  a 
charge  of  ^50  per  annum,  upon  some  property 
ofiven  to  another  lecfatee.  This  interlineation  was 
the  first  of  the  imputed  forgeries,  and  became  a 
very  important  factor  in  the  case.  It  was,  however, 
inoperative  in  itself,  inasmuch  as  it  was  not  initialled 
by  the  attesting  witnesses  nor  noticed  in  the  attesta- 
tion clause. 

In  April  1856  Mr.  Newbold  asked  John  Else  for 
a  voucher  for  some  account  which  had  been  paid. 
A  mass  of  the  testator's  papers  had  been  conveyed  to 
Else's  house  ;  amongst  them,  search  being  made 
for  the  voucher,  Else  asserted  that  he  found 
the  first  codicil  dated  the  27th  of  October  1855. 
It  was  gummed  up  in  an  envelope  which  contained, 
besides  the  codicil,  an  epitome,  upon  half  a  sheet  of 
note-paper,  of  the  will  and  first  codicil.  The  epitome, 
so  far  as  it  related  to  the  will,  was  undoubtedly 
genuine.  So  also  was  an  erasure  of  a  devise  to  S.  H. 
(Sarah  Holmes)  who  had  died  in  February  1855. 
The  rest,  relating  to  the  first  codicil,  was  alleged  to 
be  a  forgery.  The  effect  of  this  codicil  was  to 
revoke  a  devise  in   the  will,  and  to  give   property 


406    FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

worth  about  /^550  a  year  to  Else,  subject  to  four 
annuities  of  /"20  each  to  four  brothers  of  Catherine 
Marsden.  An  annuity  of  /50  a  year  was  given  to 
Mr.  Ncwbold  ;  there  was  also  a  devise  to  a  son  of 
Mr.  Ncwbold  of  the  property  which  under  the  will 
was  left  to  Sarah  Holmes,  and  further  dispositions 
in  favour  of  Catherine  Marsden. 

Ei<j;;ht  months  afterwards,  on  the  i6th  of 
December  1856,  Else  professed  to  have  found 
another  codicil,  dated  the  6th  of  January  1856.  He 
had  been  appointed  to  succeed  Mr.  Nuttall  as  sur- 
veyor of  highways  ;  a  question  arose  as  to  the  price 
of  teamwork.  The  book  containing  this  information 
was  alleged  to  be  at  Mr.  Newbold's  office,  and  Mr. 
Newbold  told  Else  to  search  amongst  a  number  of 
Mr.  Nuttall's  papers  which  were  there.  Else  found 
the  book,  as  was  stated,  in  the  presence  of  Mr. 
Newbold  and  his  son.  In  it  was  pinned  the  second 
codicil.  Roughly  speaking,  the  first  codicil  diverted 
from  the  original  dispositions  about  one  third  of  Mr. 
George  Nuttall's  property,  and  the  second  codicil 
disposed  of  about  another  third — (except  for  some 
small  annuities,  including  one  of  ^20  to  the  son  of 
Job  Knowles,  one  of  the  attesting  witnesses) — in 
favour  of  Else  and  the  Marsdens. 

The  circumstances  under  which  the  third  codicil 
was  found  on  the  9th  of  October  1857  were  even 
more  startling.  It  was  discovered  in  a  hayloft, 
which,  it  was  suggested,  the  testator  had  used  as  a 
secret  room.  Else's  account  was  that  he  desired  to 
have  the  place  cleaned,  that  he  took  a  boy  with  him 
and  told  him  to  clean  the  window  ;  that  the  boy  asked 
him  (Else)  to  open  the  window,  that  he  took  hold  of 


CASES    IN    ILLUSTRATION.  407 

the  window  board  to  help  himself  up,  when  it  came 
out  ;  that  he  was  about  to  replace  it  when  the  boy 
exclaimed  "What's  that?"  Whereupon  he  looked 
and  found  a  hole  inside  the  wall  containing  a  j  ir. 
In  the  jar  were  a  canvas  bag  and  a  paper.  In  the 
canvas  bag  were  twenty  sovereigns  ;  the  paper  was 
the  third  codicil  dated  the  12th  of  January  1856, 
six  days  later  than  the  date  of  the  second  codicil. 
As  to  its  dispositions,  it  is  only  necessary  to  say 
that  the  net  result  of  the  three  codicils,  so  far  as  the 
interest  of  John  Nuttall  and  his  children  was  con- 
cerned, was  to  reduce  the  large  property  left  to  him 
to  about  the  value  of  ^2 10  a  year,  and,  so  far  as  Else 
was  concerned,  to  increase  his  interest  under  will  and 
codicils  from  ^140  a  year  to  about  ^1,200  a  year. 

John  Nuttall,  the  original  devisee,  died  about  six 
weeks  after  the  testator.  He  died  of  consumption, 
and  was  either  dead  or  moribund  when  the  first 
codicil  came  to  light  He  was  a  stonemason  by 
trade.  His  children  were  very  young,  and  he  ap- 
pointed as  executors  and  trustees  of  his  will  two 
friends  and  fellow  workmen,  Jackson  and  Shaw. 
They  were  at  the  times  when  the  first  and  second 
codicils  were  put  forward  unable  to  afford  litigation. 
When,  however,  the  third  cociicil  turned  up,  they, 
greatly  to  their  credit,  determined  at  all  hazards  to 
dispute  the  codicils.  It  is  interesiing  to  be  able  to 
add  that  before  the  lonsf  litioation  came  to  an  end 
they  were  in  business  on  their  own  accounts,  and 
one  of  them  ultimately  became  contractor  for  some 
of  the  largest  works,  public  and  other,  carried  out  in 
his  day. 

The  first  codicil  purported  to  be  witnessed  by  two 


4oS    FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

labourers  in  the  testator's  employment :  they  proved 
unsatisfactory  witnesses,  and  had  to  be  examined 
adversely  by  the  plaintiffs  who  sought  to  establish 
the  codicil.  They  contradicted  one  another  and 
themselves,  and  prevaricated  to  the  last  extent. 
There  can  be  little  doubt  that  they  had  been  called 
in  by  the  testator  to  witness  something,  probably  a 
codicil  (o-)  ;  and  the  suggestion  made  was  that  that 
codicil  was  found  by  Else,  and  suppressed  by  him, 
and  that  the  attesting  witnesses  to  the  first  codicil 
had  really  witnessed  a  codicil  executed  by  the 
testator,  which  they  knew  to  be  different  from  the  one 
to  which  they  were  asked  to  swear  as  being  the 
testator's.  The  second  and  third  codicils  were  both 
attested  by  Job  Knowles,  a  farmer  and  neighbour 
of  the  testator,  and  John  Adams,  an  elderly  surgeon 
in  the  neighbourhood.  Both  these  witnesses 
said  they  were  at  the  testator's  house  and  signed  as 
witnesses  on  the  6th  and  12th  of  January  1856 
respectively.  Catherine  Marsden  was  not  called  as 
a  witness,  a  fact  which  caused  much  comment  ;  Else 
appeared  and  swore  to  finding  the  codicils,  and  a 
few  other  witnesses  were  called  as  to  various  circum- 
stances, including  a   bank   clerk  who   declared  that 

(g-)  In  the  epitome,  S.  H.  had  been  crossed  out,  no  doubt  after  the 
death  of  Sarah  Holmes.  The  preceding  entry  in  the  epitome  was 
"  Hardwich  and  Twitch  Nook  to  M.  T."  These  properties  were  in 
the  will  left  to  Maria  Travis.  The  entry  next  to  this  was  "  Brockhurst, 
S.  H."  At  some  time  brackets  had  been  put  both  to  the  right  and  to 
the  left  of  these  two  entries,  and  it  is  a  curious  circumstance  that 
certain  blottings  of  both  the  two  diagonal  lines  which  erased  "S.  H." 
and  the  brackets  made  it  certain  that  both  the  erasure  and  the 
brackets  were  written  at  once,  and  the  paper  folded  over  before  the 
ink  was  quite  dry.  The  inference  was  irresistible  that  after  Sarah 
H  'Imes's  death,  there  had  been  a  codicil  by  which  Brockhurst  was 
added  to  the  devise  already  made  to  Maria  Travis. 


CASES    IN    ILLUSTRATION.  409 

the  slo^natures  were  orenuine,  and  that  he  would  have 
paid  cheques  so  signed  by  the  testator. 

The  defendants'  case  involved,  as  the  Lord 
Chief  Justice  remarked,  charges  of  conspiracy  to 
commit  fraud,  forgery  and  perjury.  Stress  was  of 
course  laid  on  the  extraordinary  character  of  the 
circumstances  under  which  the  codicils  were  pro- 
duced, their  appearance  at  intervals,  each  in  the  order 
of  date,  and  their  uniform  tenor  in  favour  of  Else 
and  the  Marsdens.  These  incidents,  as  the  Lord 
Chief  Justice  subsequently  pointed  out  to  the  jury, 
strange  as  they  might  be,  were  not  impossible  and 
might  be  accepted  if  the  jury  were  satisfied  by  the 
rest  of  the  evidence  that  the  codicils  themselves  were 
genuine.  The  real  strength  of  the  defendants'  case 
lay  in  the  documents  themselves  and  the  conclu- 
sions to  be  gathered  from  their  contents.  This 
part  of  the  case  was  worked  up  with  minute  care, 
and  the  details  are  instructive  in  showing  the  steps 
by  which  circumstantial  proof  becomes  irresistible. 

The  will  and  codicils  were  obviously  in  different 
styles  of  writing  ;  but  the  testator  wrote  in  two  styles, 
and  the  codicils,  as  well  as  the  interlineation  in  the 
will,  were  alleged  to  be  in  his  more  formal  style, 
which  resembled  John  Else's  writing.  Hence  it 
became  necessary  to  examine  the  genuine  and  dis- 
puted documents  for  further  distinctions,  and  to 
compare  them  with  undisputed  writings  of  the 
testator  and  John  Else, 

There  were  mistakes  in  spelling  in  both  the  will 
and  the  codicils.  In  the  will,  which  was  as  lono"  as 
the  three  codicils  taken  together,  appeared  three  words 
misspelt,    viz.   "  surgion,"  "  debth,"  "oweing,"  and 


4lO  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

in  some  fifty  or  sixty  letters  and  other  undisputed 
writings  of  the  testator  (some  of  great  length,  and 
all  obtained  and  put  in  without  any  selection) 
"  chage  "  (for  charge),  "  stile  "  for  "  style,"  "  rabbitts," 
"  untill,"  "strengh,"  "  seperate,"  "  exhempt,"  and 
perhaps  some  others  ;  but  those  here  given  were  the 
most  striking.  The  codicils  contained  many  more 
blunders,  and  of  a  much  grosser  and  more  ignorant 
kind  ;  for  example,  "  executers,"  "  conferm,"  "hears" 
(heirs),  "  contiguaes  "  (contiguous),  "annexd,"  all  of 
which  were  spelt  correctly  in  the  will.  Great 
emphasis  was  laid  upon  two  mistakes  which  ap- 
peared in  the  codicils  in  respect  of  words  which 
were  spelt  correctly  in  the  will.  These  were 
''  doughter"  for  "  daughter,"  which  the  testator  always 
spelt  correctly,  but  which  from  a  comparison  with 
very  many  of  his  writings,  it  was  shown  that  Else 
always  spelt  with  an  "  o,"  except  upon  one  single 
occasion  when  he  wrote  "dughter,"  [Ii)  and  '*  tith 
commuation  " — for  "  tithe  commutation."  Some 
twenty-eight  letters  were  produced  written  by  the 
testator  to  the  Tithe  Commutation  Commissioners, 
in  which  the  expression  was  never  incorrectly 
spelt. 

Many  gross  mistakes  in  spelling  were  adduced 
from  other  documents  in  Else's  handwriting — such 
blunders  as  "  pursons,"  "shuld,"  "gitting,"  "  usuel," 
and  so  forth,  of  a  different  character  from  most  of 
the    testator's    mistakes,    which    were    often    mere 

{h)  "Doughter"  is  a  phonetic  misspelling,  corresponding  with  a 
pronunciation  of  the  word  common  in  that  part  of  the  country.  Else 
was  accustomed  to  serve  County  Court  processes,  and  many  County 
Court  documents  were  produced,  indorsed  by  him  with  memoranda  of 
service  "  by  leaving  a  copy  with  his  doughter." 


CASES    IN    ILLUSTRATION.  4 II 

slips  of  a  rapid  penman,  or  archaisms,  as  "  oweing," 
"  untill,"  and  "  musick." 

Else  very  frequently  put  a  strong  comma  after 
the  signature  of  his  own  name  ;  Mr.  Nuttall  occa- 
sionally put  a  light  full  stop  after  his  signature — but 
never  a  comma ;  the  signatures  to  the  three  codicils 
had  a  strong  comma  after  "  George  Nuttall."  In 
respect  of  handwriting,  perhaps  the  most  cogent 
proof  of  all  was  discovered  in  the  crossing  of  the 
"t"  in  the  simple  word  "to,"  when  standing  by 
itself.  In  the  will  the  "t"  was  uncrossed  fifty 
one  times,  whole-crossed  (z)  five  times,  but  half- 
crossed  never  ;  so  in  fifty  of  the  testator's  letters 
the  "t"  was  uncrossed  one  hundred  and  thirty-one 
times,  whole-crossed  fourteen  times,  but,  again,  never 
half-crossed.  In  fact,  throughout  a  very  large 
quantity  of  undisputed  writings  of  the  testator  only 
two  half-crossed  "  t's  "  in  the  word  "  to  "  were  dis- 
covered, and  they  were  in  two  instances  in  which 
the  w  riting  was  of  the  stiHest  and  most  formal  kind — 
one  of  them  occurring  in   the   phrase  "Schedule  to 

the  "  ;  the  words  being  almost  a  kind  of  print. 

On  the  other  hand,  a  great  number  of  Else's 
writings  showed  that  half-crossing  the  "t"  in  "to" 
was  his  habit.  In  one  document  of  Else's — a  will 
which  he  had  written  for  one  Euke  Wilson — 
twenty-six  out  of  twenty-eight  "t's"  in  the  word  "  to" 
were  half-crossed,  and  in  another  fifteen  out  of 
sixteen.  In  the  interlineation  of  the  will  "to" 
occurred  three  times,  and  each  time  the  "t"was 
half-crossed  ;  and   in   the  three  codicils  there  w^ere 

(?■)  The  crossing  stroke  extending  both  right  and  left  of  the  down 
stroke. 


412  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

sixteen  half-crossed  "  t's,"  twelve  uncrossed,  and 
th.irty-three  whole-crossed.  The  epitome  of  the  will 
and  the  first  codicil  presented  so  small  a  field  for 
criticism  of  handwriting  that  it  had  always  been  a 
difficulty  in  the  way  of  the  defendants.  The  dis- 
puted portions  were  far  more  like  the  running  hand  of 
the  undisputed  part,  and  presented  a  closer  general 
resemblance  to  the  handwriting  of  the  testator  than 
any  other  of  the  incriminated  documents.  It  had, 
therefore,  been  greatly  relied  upon  by  the  plaintiffs, 
and  it  had  this  cardinal  importance :  that,  if  the 
whole  of  it  were  genuine,  it  followed  almost  for  a 
certainty  that  the  first  codicil,  with  all  its  solecisms 
and  mistakes  in  spelling,  was  genuine.  If  so,  a 
great  difficulty  was  removed  from  the  acceptance  of 
the  second  and  third.  The  fact  that  the  crossing  of 
the  "  t "  in  the  preposition  "  to  "  was  really  a  key 
to  the  two  handwritinpfs  was  discovered  between  the 
second  and  third  trials.  The  epitome  contained 
fourteen  "  t's  "  relating  to  the  will  ;  of  these,  one  was 
whole-crossed,  and  thirteen  uncrossed.  It  was  Mr. 
Nuttall's  prevailing  habit  to  leave  the  "  t  "  (in  "  to") 
uncrossed.  The  disputed  portions  of  the  epitome 
contained  the  word  "to"  seven  times.  In  every 
instance  the  "t"  was  half-crossed,  and  the  half- 
page  of  note-paper,  which  had  been  more  or  less  of 
a  stumbling-block  in  the  way  of  the  defendants,  be- 
came one  of  their  strongest  pieces  of  evidence.  In- 
deed, when  carefully  considered  it  is  of  irresistible 
force — it  is  one  of  those  circumstances  '*  which 
never  lie."  The  Lord  Chief  Justice  said,  in  the 
course  of  his  summing  up,  that  the  habit  of  crossing 
a  "  t "  in  "  to  "  in  a  particular  way  might  at  first  sight 


CASES    IN    ILLUSTRATION.  413 

appear  to  be  a  small  matter  ;  but  that  in  a  case  which 
was  full  of  wonders,  this  was,  perhaps,  the  most  re- 
markable as  well  as  the  most  convincing  incident. 

(6.)  A  curiously  similar  instance,  in  which  a  single 
stroke  was  again  decisive  as  to  the  genuineness 
of  disputed  documents,  occurred  in  the  case  of 
Howe  V.  Burchardt  and  another,  which  was  tried  be- 
fore Mr.  justice  Wills  at  the  Middlesex  Sittintrs  in 
February  1891. 

The  plaintiff  Howe  brought  an  action  against  the 
executors  of  a  Mr.  Ashton  on  a  cheque  for  ^1,375, 
which  he  alleged  that  the  testator  had  given  to  him 
three  or  four  days  before  his  death.  The  body  of 
the  cheque  was  admittedly  written  by  the  plaintiff,  but 
as  he  alleged,  at  the  request  of  the  testator.  In 
order  to  show  how  the  sum  of  ^1,375  was  arrived 
at,  Howe  produced  a  memorandum,  which  he  alleged 
the  testator  had  written,  containing  a  number  of 
figures.  There  happened  to  be  amongst  these  figures 
several  sevens.  Mr.  Ashton  was  a  comparatively 
well-educaied  man,  who  wrote  with  the  free  pen  of 
a  rapid  writer,  Howe  had  been  originally  a  railway 
porter,  who  had  raised  himself  somewhat  in  the 
world,  and  was  then  carrying  on  a  small  business. 
He  wrote  the  laboured  hand  of  an  uneducated  man. 
Many  hundreds  of  sevens  written  severally  by 
Ashton  and  by  Howe  were  produced.  They  were 
found  in  account  books,  upon  paying-in  slips,  in 
letters,  and  many  other  documents.  Ashton  always 
made  his  seven  by  one  continuous  action  of  the 
pen  ;  Howe  always  by  two,  invariably  making  at  the 
beginning  of  his  figure  a  heavy  vertical  bar  which 


414    FORCE  OF  CIRCUMSTANTIAL  EVIDENCE, 

crossed  the  short  horizontal  stroke  at  the  top  of  the 
seven  — thus  :  Ashton's  figure  7  ;  Howe's  '7  or  -7  or  f. 
In  no  instance  could  any  deviation  from  this  law 
be  discovered.  The  cheque  sued  upon  contained 
two  sevens,  and  the  memorandum  showing  how 
the  ^1,375  was  arrived  at  several  more,  all  made 
in  Howe's  fashion.  Some  other  documents  were  in 
dispute,  as  to  which  the  same  observation  applied. 

Another  notable  and  interesting  fact  in  the  same 
case,  which  bore  directly  upon  the  genuineness  of 
the  cheque,  was  that  the  cheque  was  signed  "  B. 
Ashton."  Mr,  Ashton  was  in  the  habit  of  signing 
his  letters  in  that  way,  but  his  cheques  were  always 
signed  "  Benj,  Ashton  "  :  and  a  letter  was  produced 
upon  the  trial  which  was  admitted  to  have  been  in 
the  possession  of  the  plaintiff  shortly  after  the  death 
of  the  testator,  signed  "  B.  Ashton,"  and  bearing  so 
striking  a  resemblance  to  the  signature  on  the  cheque 
that  it  was  alleged  by  the  defendants  to  have  been 
the  original  from  which  the  forged  signature  had  been 
traced.  Mr.  Ashton's  bankers  produced  more  than 
870  of  his  cheques,  extending  over  five  years,  in- 
cluding several  signed  within  a  very  few  days  of 
his  death,  none  of  which  were  signed  "  B.  Ashton." 
Howe  was  unaware  of  this  fact.  The  case  was  a 
complicated  one,  and  involved  a  series  of  inventions 
by  the  plaintiff  of  the  most  ingenious  and  audacious 
kind,  the  exposure  of  which  required  twelve  days  of 
patient  investigation  [^).  Howe  was  afterwards 
tried  at  the  Old  Bailey,  before  Mr.  Justice  Charles, 
for  forgery,  and  convicted. 

(k)  See  also  p.  197,  supra^  where  another  fraudulent  device  in  this 
case  is  related. 


CASES    IN    ILLUSTRATION.  415 

(7.)  A  remarkable  case,  illustrating  how  one  small 
clue  or  fact  may  lead  not  only  to  the  identification 
of  the  culprit,  but  to  the  detection  of  his  motive  and 
to  the  complete  circumstantial  proofs  of  his  crime, 
was  tried  before  the  Lord  Chief  Justice  of  England 
at  the  Central  Criminal  Court  in  February  1901. 
The  crime  was  committed  in  Norfolk,  but  the  pro- 
ceedings were  removed  under  the  provisions  of  19 
&  20  Vict.  c.  19  (/). 

At  about  six  o'clock  on  the  morning  of  Sunday, 
the  23rd  of  September  1900,  the  body  of  a  woman 
was  found  on  the  south  beach  at  Yarmouth.  She 
was  lying  on  her  back,  her  hands  by  her  side,  and 
her  hair  loose  upon  her  shoulders ;  there  were 
scratches  and  abrasions  on  her  face,  and  a  mohair 
bootlace  was  tied  so  tightly  round  her  neck  that  the 
flesh  was  doubled  over  it.  Death  was  due  to 
strangulation,  and  having  regard  to  the  tightness 
with  which  the  lace  was  tied  and  the  way  it  was 
knotted,  there  was  no  doubt  whatever  that  the 
woman  had  been  murdered.  She  had  rings  upon 
her  fingers  ;  but  there  was  no  clue  to  her  identity 
except  a  laundry  mark,  599,  on  some  of  her  linen. 
She  was  a  stranger  to  Yarmouth,  having  come 
there  with  her  baby  on  the  15th  of  September,  and 
had  been  lodging  since  that  date  with  some  people 
named  Rudrum.  Nothing  was  known  of  her  except 
that  she  went  by  the  name  of  Mrs.  Hood,  owing  to 
the  fact  that  she  had  received  a  letter  on  Friday 
evening  (21st  September)  addressed  in  that  name. 
It  bore  the  Woolwich  post-mark.  A  few  days 
before  her  death  she  had  been  photographed  on  the 

(/)  Commonly  known  as  "  Palmer's  Act." 


4l6    FORCE  OF  CIRCUMSTANTIAL  EVIDENCE. 

shore,  and  the  photograph  was  found  in  her  room- 
it  showed  that  she  was  wearing  a  long  chain  ;  and 
it  was  proved  that  she  was  wearing  a  long  gold 
chain  and  a  silver  watch  when  she  went  out  on  the 
evening  of  Saturday  (22nd  September).  The  watch 
and  chain  were  not  on  the  body,  and  no  trace  of  them 
could  be  found.  She  was  last  seen  alive  by  Mrs. 
Rudrum  on  that  Saturday  evening,  between  eight 
and  nine  o'clock,  waiting  near  the  Town  Hall,  and 
obviously  expecting  to  meet  someone — Mrs.  Rudrum 
having  stopped  and  conversed  with  her  for  a  short 
time.  This  was  all  that  could  be  discovered  about 
the  deceased  woman  at  that  time,  and  towards  the 
end  of  October  the  coroner's  jury  were  forced  to 
find  a  verdict  of  murder  of  a  woman  unknown  by  a 
man  unknown. 

Ultimately  it  was  discovered  that  the  number  599 
was  the  laundry  mark  of  linen  coming  from  a  house 
at  Bexley  Heath,  in  which  a  woman  named  Bennett 
had  been  living  with  a  biby.  She  proved  to  be 
the  woman  in  the  photograph.  This  led  to  the 
arrest,  on  the  6th  of  November,  of  the  prisoner 
Herbert  John  Bennett,  who  was  her  husband.  He 
was  then  living  at  Woolwich,  and  was  employed  as 
a  labourer  at  the  Arsenal.  In  the  room  in  which 
he  lodged  were  found  a  long  gold  chain  and  silver 
watch,  and  these  were  identified  at  the  trial  as 
having  belonged  to  his  wife,  and  as  having  been 
worn  by  her  on  the  night  of  Saturday,  the  22nd  of 
September.  On  his  arrest  the  prisoner  said  he  had 
never  been  to  Yarmouth  ;  but  the  following  facts 
were  proved  which  revealed  his  previous  history 
and  his  movements  at  the  date  of  the  murder.     The 


CASKS    IN    ILLUSTRATION.  417 

prisoner  made  the  acquaintance  of  the  deceased  by 
taking  music  lessons  of  her ;  they  were  married  in 
July  1897,  ^^<^  they  lived  with  the  deceased's  grand- 
mother until  her  death  in  April  1898.  Their  baby 
was  born  in  October  1898.  In  March  1900  they 
went  to  South  Africa  and  bick,  having  booked 
passages  in  the  name  of  Mr.  and  Mrs.  Hood. 
Returning  in  May  of  the  same  year,  they  took 
rooms  at  Plumstead,  where  they  lived  together 
unhappily,  the  prisoner  threatening  his  wife's  life,  and 
saying  that  he  wished  she  were  dead.  From  June 
the  prisoner  was  leading  a  double  life.  He  took  a 
room  at  Woolwich,  where  he  was  employed  for 
some  time  as  a  grocer's  assistant,  and  passed  as  a 
single  man  ;  the  deceased  took  a  house  at  Bexley 
Heath  and  lived  there,  being  occasionally  visited  by 
the  prisoner.  About  this  time  he  was  introduced, 
throuo^h  a  fellow  lods^er  at  Woolwich,  to  a  orirl  named 
Alice  Meadows,  and  paid  her  a  great  deal  of  atten- 
tion. They  arranged  to  go  to  Yarmouth  together 
for  the  Bank  Holiday,  and  on  the  30th  of  July  the 
prisoner  wrote  to  Mrs.  Rudrum  for  lodgings,  but 
received  an  answer  that  her  lodpfinors  were  enoao-ed 
for  Bank  Holiday.  The  letter  to  Mrs.  Rudrum 
was  in  the  same  handwriting,  and  was  written  upon 
the  same  kind  of  blue  paper  as  the  letter  already 
mentioned  as  addressed  to  Mrs.  Hood,  and  received 
by  the  deceased  woman  on  Friday,  the  21st  of  Sep- 
tember. The  prisoner  and  Alice  Meadows,  how- 
ever, went  to  Yarmouth,  and  stayed  at  the  Crown 
and  Anchor  Hotel.  At  the  end  of  August  they 
went  for  a  fortnight  to  Ireland.  The  prisoner  spent 
money  freely,  and  upon  his  return  was  engaged  to 

C.E.  E  E 


4l8  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

Alice  Meadows,  and  gave  her  a  ring.     They  were 
to  be  married  the  following  June. 

On  Friday,  the  f4th  of  September,  the  prisoner 
visited  his  wife  and  child  at  Bexley  Heath.  Pre- 
parations were  at  once  made  by  the  wife  for  leaving 
the  house.  The  same  evening  the  prisoner  saw 
Alice  Meadows  in  Bayswater  and  told  her  that  he 
could  not  see  her  the  following  day  as  he  had  to  go 
to  Gravesend  on  account  of  the  illness  of  his  grand- 
father. The  following  day  (the  15th)  he  did  not 
work  at  the  Arsenal.  The  wife  arrived  at  her 
lodoines  in  Yarmouth  at  about  nine  o'clock  in  the 
evening  of  the  15th.  She  stayed  only  long  enough 
to  put  the  child  to  bed,  and  then  went  out,  not 
returning  till  nearly  midnight.  The  prisoner  arrived 
at  the  Crown  and  Anchor  some  time  after  eleven 
o'clock  on  the  same  evening,  slept  there,  and  went 
up  to  London  by  the  first  train  in  the  morning  at 
7.20.  He  reached  London  about  11.30,  and  at  12.0 
noon  was  at  the  house  of  Alice  Meadows's  mother, 
in  Stepney.  The  following  Thursday  he  again  told 
Alice  Meadows  that  he  could  not  see  heron  Sunday 
because  he  intended  to  go  to  Gravesend  to  see  his 
grandfather.  On  Saturday  (22nd)  at  about  3.0  p.m. 
he  spoke  to  his  landlady  at  Woolwich  as  if  he  were 
going  away  by  train  ;  he  had  a  time-table  in  his 
hand.  At  about  lo.o  that  evening  —after  Mrs. 
Rudrum  had  spoken  to  the  deceased  waiting  out- 
side the  Town  Hall — she  and  the  prisoner  were 
seen  in  a  public-house  on  the  quay  at  Yarmouth. 
At  I  i.o  two  people  on  the  beach  saw  a  man  and  a 
woman  seat  or  lay  themselves  on  the  sand,  and  soon 


CASES    IN    ILLUSTRATION.  419 

after  heard  cries  of  "Mercy!  mercy!"  and  groans, 
and  then  no  further  sound. 

At  about  midnight  the  prisoner  again  arrived  at 
the  Crown  and  Anchor,  hot  and  breathless,  and  said 
he  must  catch  the  early  morning  train  to  London. 
This  he  did,  and  went  straight  to  Hyde  Park,  where 
he  met  Alice  Meadows.  His  subsequent  conduct 
was  consistent  only  with  a  knowledge  that  his  wife 
was  dead.  He  urged  Alice  Meadows  to  marry  him 
at  once.  He  paid  the  house  agents  ^5  to  get  rid 
of  the  house  his  wife  had  taken  at  Bexley  Heath. 
He  gave  Alice  Meadows  some  of  his  deceased  wife's 
property,  and  told  her  that  a  cousin  was  going  to 
South  Africa  with  his  wife  and  child,  and  that  he  had 
bought  their  furniture.  In  consequence,  on  the  17th 
of  October,  Alice  Meadows  gave  up  her  situation  in 
Bayswater,  and  a  residence  was  fixed  upon,  and  at 
the  prisoner's  arrest  the  marriage  was  imminent. 
After  a  trial  lasting  a  week  the  prisoner  was  con- 
victed, and  afterwards  executed  (w). 

It  is  scarcely  possible,  in  the  absence  of  unim- 
peachable direct  evidence,  to  conceive  of  any 
grounds  of  moral  assurance  and  judgment  more 
satisfactory  and  conclusive  than  those  afforded  by 
such  combinations  of  facts  as  were  presented  in  the 
foregoing  cases. 

(in)  Rex  V.  Bennett,  known  as  The  Yarmouth  Murder,  coram  Lord 
Alverstone,  L.C.J.,  C.  C.  C,  Feb.  24,  1901,  See  the  Times  Report, 
Feb.  25,  et  seq. 


420       force  of  circumstantial  evidence. 

Section   4. 
conclusion. 

The  rules  of  evidence  are  the  practical  maxims  of 
legal  and  philosophic  experience,  matured  and 
methodized  by  a  succession  of  thoughtful  men, 
as  the  best  means  of  discriminating  truth  from 
error,  and  of  contracting  as  far  as  possible  the 
dangerous  power  of  judicial  discretion.  They  have 
their  origin  in  man's  nature,  as  an  intellectual  and  a 
moral  being;  and  "are  founded"  (to  use  the 
language  of  one  of  the  most  eloquent  of  advocates), 
"  in  the  charities  of  religion,  in  the  philosophy  of 
nature,  in  the  truths  of  history,  and  in  the  experience 
of  common  life."  Such  rules  must  of  necessity  be 
substantially  the  same,  in  all  cases  ;  and  the  observ- 
ance of  them  is  indispensable  to  social  security 
and  happiness.  To  disregard  them,  under  what- 
ever circumstances  or  pretext,  is  to  subject  to  the 
sport  of  chance  those  fundamental  rights  which  it  is 
the  object  of  social  institutions  to  secure. 

The  design  of  this  Essay  has  been  to  investigate 
the  foundations  of  our  faith  in  circumstantial 
evidence,  to  ascertain  its  limits  and  its  just  moral 
effect,  and  to  illustrate  and  confirm  the  reasonable- 
ness of  the  practical  rules  which  have  been 
established  in  order  to  prevent  unauthorised 
assumptions,  and  to  secure  to  relevant  facts  their 
proper  weight.  It  has  been  maintained  that  cir- 
cumstantial evidence  is  inherently  of  a  different 
and  inferior    nature  from  direct  and  positive  testi- 


CONCLUSION.  421 

.mony ;  but  that  nevertheless  such  evidence,  althG;igh 
not  invariably  so,  is  frequently  superior  in  proving 
power  to  the  average  strength  of  direct  evidence  ; 
and  that,  under  the  safeguards  and  qualifications 
which  have  been  stated,  it  affords  a  secure  crround 
for  the  most  important  judgments  in  cases  where 
direct  evidence  is  not  to  be  obtained. 

It  must,  however,  be  conceded,  that  "with  the 
wisest  laws,  and  with  the  most  perfect  administration 
of  them,  the  innocent  may  sometimes  be  doomed  to 
suffer  the  fate  of  the  guilty  ;  for  it  were  vain  to  hope 
that  from  any  human  institution  all  error  can  be 
excluded  "(;2).  But  certainty  has  not  always  been 
attained  even  in  those  sciences  which  admit  of 
something  approaching  to  demonstration  ;  still  less 
can  unfailing  assurance  be  invariably  expected  in 
investigations  which  are  largely  concerned  with 
moral  considerations  and  with  the  facts  and  impulses 
of  human  nature.  Nor  can  any  argument  against 
the  validity  and  sufficiency  of  circumstantial  evi- 
dence as  a  means  of  arriving  at  moral  certainty  be 
drawn  from  the  fact  that  it  has  occasionally  led  to 
erroneous  convictions,  which  does  not  equally  mili- 
tate against  the  validity  and  sufficiency  of  moral 
evidence  of  every  kind  ;  and  it  is  believed  that  a  far 
greater  number  of  wrong  convictions  have  arisen 
from  false'  and  mistaken  direct  and  positive  testi- 
mony, than  from  erroneous  inferences  drawn  from 
circumstantial  evidence.  "  Admitting,"  said  Mr. 
Justice  Story,  "  the  truth  of  such  cases,  are  we,  then, 
to  abandon  all  confidence  in  circumstantial  evidence, 

(«)  Romillys  Obs.  on  the  C.  L.  of  Engl.  74. 


42  2  FORCE    OF    CIRCUMSTANTIAL    EVIDENCE. 

and  in  the  testimony  of  witnesses  ?  Are  we  to 
declare  that  no  human  testimony  to  circumstances 
or  to  facts  is  worthy  of  beHef,  or  can  furnish  a  just 
foundation  for  a  conviction  ?  That  would  be  to  sub- 
vert the  whole  foundations  of  the  administration  of 
public  justice  "  {o). 

These  considerations  ought  not  therefore  to  pro- 
duce an  unreasonable  and  indiscriminate  scep- 
ticism ;  their  legitimate  effect  should  be  to  inspire 
a  salutary  caution  in  the  reception  and  estimate 
of  circumstantial  evidence,  and  to  render  the 
legislator  especially  wary  how  he  authorises,  and 
the  magistrate  how  he  inflicts,  punishment  of  a 
nature  which  admits  neither  of  reversal  nor  mitigra- 
tion.  It  is  indispensable,  however,  under  every 
system,  to  the  very  existence  of  society,  that  the 
tribunals  should  act  upon  circumstantial  evidence. 
Infallibility  belongs  not  to  man  ;  and  even  his 
strongest  degree  of  moral  assurance  must  be 
accompanied  by  the  possible  danger  of  mistake  ; 
but  after  just  effect  has  been  given  to  sound 
practical  rules  of  evidence,  there  will  remain  no 
other  source  of  uncertainty  or  fallacy  than  that 
general  liability  to  error,  which  is  incidental  to  all 
investigations  founded  upon  moral  evidence,  and 
from  which  no  conclusion  of  the  human  judgment, 
whether  based  upon  direct  or  circumstantial  evi- 
dence, can  be  absolutely  and  entirely  exempt. 

(o)  Wharton's  Criminal  Law  of  the  U.  S.  343,  3rd  ed.  1855. 


AMERICAN    NOTES. 

[Note  t5  Chapter  VIII.] 

See  note  to  Chapter  II  on  the  relative  value  of  direct  and 
circumstantial  evidence. 

Weight  of  Circumstances  as  a  Basis  for  Inference. 

In  People  v.  Videto,  i  Parker  Crim.  (N.  Y.)  603,  Walworth,  J., 
thus  classifies  the  presumptions  arising  from  the  proof  of  various 
circumstances,  and  discusses  the  strength  of  the  inferences  to  be 
drawn  from  them. 

"  I.  Violetit  Presumptions.  —  Where  the  facts  and  circumstances 
proved  would  necessarily  attend  the  fact  presented.  As,  if  your 
horse  had  been  shot  in  the  stable  by  a  musket-ball,  and  it  was 
proved  that  a  man  was  seen  immediately  before  to  load  his  gun 
and  go  into  the  stable  ;  that  the  report  of  a  musket  was  heard  in 
the  stable  and  that  the  man  immediately  came  out  with  his  gun 
and  fled.  These  circumstances  would  raise  a  violent  presumption 
that  the  man  shot  the  horse,  because  the  loading  of  the  gun,  the 
report  in  the  stable,  the  gun  being  unloaded  when  he  came  out,  are 
all  facts  which  must  necessarily  attend  the  fact  presumed  ;  to  wit, 
that  he  shot  the  horse.  And  upon  such  testimony,  unexplained, 
it  would  be  the  duty  of  a  jury  to  give  a  verdict  against  him,  equally 
as  it  would  be  if  the  shooting  of  the  horse  was  positively  sworn  to 
by  the  same  witness.  For  in  either  case,  if  the  witness  was  to  be 
credited,  there  could  be  no  reasonable  doubt  of  the  guilt  of  the 
accused,  although  there  was  a  possibility  of  his  innocence. 

"  2.  Probable  Presumptions.  —  Where  the  facts  and  circum- 
stances proved  usually  attend  the  fact  presumed.  As,  if  your 
horse  is  stolen,  and  shortly  thereafter  he  is  found  in  the  possession 
of  the  accused,  who  refuses  to  give  any  explanation  as  to  the 
manner  in  which  the  horse  came  into  his  possession.  These  cir- 
cumstances raise  a  probable  presumption  that  the  accused  com- 


^22  b  AMERICAN   NOTES. 

niitieil  the  theft.     It  is  every  day's  practice  to  convict  on  such 
circumstantial  evidence,  if  the  transaction  is  unexplainetl. 

''  3.  Light  or  Rash  Fresiunptions.  —  When  the  facts  and  circum- 
stances proved  miglit  probably  attend  the  fact  presumed.  As,  if  a 
man  gave  medicine  to  liis  wife,  and  she  died  shortly  afterwards, 
it  would  be  a  light  presumption  of  the  fact  that  he  had  given  her 
poison  instead  of  medicine,  and  could  not  legally  authorize  his 
conviction  for  murder.  But  there  are  many  circumstances  which, 
taken  separately,  would  only  amount  to  light  ox  rash  presumptions, 
and  as  such  entitled  to  no  weight,  which,  if  they  were  well  proved 
and  connected  together  in  one  case,  might  amount  to  probable  or 
even  to  violent  presumption  of  guilt.  As,  if  a  wife  die  very  sud- 
denly, with  the  usual  symptoms  of  having  been  poisoned.  It  is 
proved  that  she  and  her  husband  were  on  ill  terms ;  that  he  had 
threatened  her  life  ;  that  he  gave  her  liquor  to  drink  shorUy  before 
those  symptoms  appeared  ;  that  he  was  seen  to  put  something  into 
the  bottle  of  liquor ;  that  he  purchased  arsenic  the  day  before  ; 
that  the  bottle  being  inquired  for  he  immediately  flung  away  the 
liquor  remaining  therein  ;  that  he  gave  no  satisfactory  account  of 
what  had  been  done  with  the  arsenic  ;  that  he  caused  her  to  be 
buried  unusually  soon  after  her  death  ;  that  the  contents  of  her 
stomach  being  analyzed  were  found  to  contain  arsenic.  Each  of 
these  circumstances,  taken  by  itself,  and  perhaps  two  or  three  of 
them  together,  would  be  nothing  more  than  rash  or  light  presump- 
tions of  the  guilt  of  the  husband.  But  if  all  the  circumstances  I 
have  enumerated  were  satisfactorily  proved  by  credible  witnesses 
and  were  left  unexplained  by  the  accused,  they  might,  when  taken 
together,  carry  irresistible  conviction  to  the  minds  of  the  jury  that 
he  had  killed  his  wife  by  poison." 

Relative    Weight  to  be  Given  to   Circumstances. 

Where  there  is  one  circumstance  favorable  to  a  certain  con- 
clusion, and  several  circumstances  unfavorable  to  it,  the  first 
circumstance  is  not  to  be  weighed  against  each  of  the  others 
separately  but  against  them  all  collectively.  In  illustration  of  this 
the  following  case  is  stated  in  Hubback's  Succession,  Chapter  VI. 
48  Law  Library,  *447.  "  Elizabeth  Jennens,  the  ancestress  of  the 
plaintiff,  was  shown  to  have  been,  in  adult  life,  a  Roman  Catholic. 


AMERICAN   NOTES.  422  c 

The  family  with  whom  it  was  endeavored  to  connect  her  were 
Protestant.  Suppose  it  to  be  more  probable  that  she  should  have 
changed  her  religion  than  that  there  should  have  been  two  or  more 
persons  of  one  name,  district,  and  period,  and  corresponding  in 
some  other  particulars,  and  let  the  relative  probabilities  be  as  2 
to  I ;  whereby  if  the  truth  be  denoted  by  unity,  the  greater 
probability  may  be  represented  by  the  fraction  §.  But  it  was 
further  proved  that  the  plaintiff's  ancestress  could  not  write  her 
name,  but  made  her  mark.  Let  it  again  be  conceded  to  be 
more  probable  by  5  to  4  (equal  to  0  of  the  truth)  that  the 
daughter  of  an  opulent  family  should  have  been  so  much  neg- 
lected, in  youth,  or  incapacitated  by  disease,  or  other  causes,  as 
to  have  been  unable  to  write,  than  that  there  should  have  been 
more  than  one  Elizabeth  Jennens,  with  the  proved  characteristics 
in  common.  The  chances  in  each  step  of  the  argument  are  thus 
in  favor  of  the  identity  ;  but  the  result  from  both  is  to  be  ascer- 
tained by  multiplying  the  fractions  into  each  other,  §  X  f ,  which 
will  give  \^  as  indicating  the  degree  of  likelihood  that  there  was 
but  one  Elizabeth  Jennens;  that  is,  the  probabilities  are  as  10  in 
favor  of  that  conclusion,  to  17  against  it. 

"  Of  course  a  very  few  more  incongruities  would  make  the  pre- 
ponderance of  the  probability  against  the  identity  overwhelming ; 
and  in  this  case,  several  others  being  proved,  the  Vice  Chancellor 
thought  it  so  clear  that  the  plaintiffs  ancestress  was  not  the  iron- 
master's daughter  that  he  refused  an  issue  to  try  (what  depended 
on  such  identity)  the  plaintiff's  proximity  of  kindred  to  the 
intestate  in  the  cause.  " 

In  discussing  the  defence  of  alibi.  Chief  Justice  Shaw,  in  Com.  v. 
Webster,  5  Cush.  295,  318,  says  :  "  When  a  fact  has  occurred,  with 
a  series  of  circumstances  preceding,  accompanying,  and  following 
it,  we  know  that  these  must  all  have  been  once  consistent  with  each 
other ;  otherwise  the  fact  would  not  have  been  possible.  There- 
fore, if  any  one  fact  necessary  to  the  conclusion  is  wholly  incon- 
sistent with  the  hypothesis  of  the  guilt  of  the  accused,  it  breaks 
the  chain  of  circumstantial  evidence,  upon  which  the  inference 
depends ;  and,  however  plausible  or  apparently  conclusive  the 
other  circumstances  may  be,  the  charge  must  fail.  " 


422  d  AMERICAN   NOTES. 

Multitude  of  Circumstances. 

Circumstances  taken  separately  may  be  wholly  insufificient  upon 
which  to  base  an  inference,  and  yet  all  together  be  absolutely  con- 
vincing. This  is  especially  true  when  the  evidence  is  derived  from 
various  independent  sources,  and  there  are  various  coincidences 
all  leading  to  the  same  conclusion.  U.  S.  v.  Searcey,  26  P'ed. 
Rep.  435  ;  U.  S.  v.  Isla  De  Cuba,  Fed.  Cas.  15447. 

Generally  the  multitude  of  circumstances  from  which  an  in- 
ference is  drawn  guarantees  the  correctness  of  the  inference,  but 
in  some  cases  the  truth  of  each  circumstance  depends  upon  the 
truth  of  a  preceding  circumstance.  In  such  case  the  circumstances 
may  truly  be  likened  to  a  chain,  and  then  the  conclusion  drawn 
is  no  stronger  than  the  weakest  link.  State  v.  Shines,  125 
N.  C.  730;  Tompkins  v.  State,  32  Ala.  569,  Bressler  v.  People, 
1 17  111.  422. 

A  fact  which,  standing  alone,  would  be  consistent  with  in- 
nocence, may,  when  taken  in  connection  with  other  facts, 
become  significant  evidence  of  guilt.  Com.  v.  Kennedy,  97 
Mass.    224. 

"  Evidence  which  is  colorless  taken  by  itself,  which  establishes 
neither  a  constituent  nor  a  fact  pointing  by  inference  to  a  con- 
stituent of  a  crime,  may  be  made  significant  by  other  evidence, 
and  so  may  be  made  admissible.  It  need  not  be  self-justifying 
without  regard  to  the  other  circumstances  proved."  Com.  v. 
O'Neil,  169  Mass.  394;  Com.  v.   Williams,  171  Mass.  461. 

Since  small,  and,  when  considered  alone,  meaningless  circum- 
stances may  be  of  importance  in  connecting  other  circumstances, 
every  fact,  however  trivial,  which  can  aid  the  jury  in  reaching  a 
conclusion  should  be  admitted  in  evidence,  even  so  slight  a  cir- 
cumstance as  the  burning  of  a  light  at  a  late  hour  of  the  night 
(People  V.  Johnson,  2  Wheeler  Crim.  Cas.  (N.  Y.)  361),  or  the 
whispering  together  of  two  women  after  they  have  retired  for  the 
night  (People  v.  Bemis,  51  Mich.  422),  or  that  one  charged  with 
larceny  was  seen  about  the  time  of  the  theft  in  company  with  one 
who  afterwards  had  the  stolen  goods  in  his  possession.  Langford 
V.  State,  17  Tex.  Crim.  445. 


AMERICAN   NOTES.  422  ^ 

Considerations  Increasing  the  Force  of  Circumstances. 

The  possession  of  money  of  the  same  kinds  as  that  recently 
stolen  may  be  of  slight  or  no  weight  as  evidence  against  the  ac- 
cused. But  if  such  money  is  rarely  seen  in  circulation  at  the  place 
where  found  the  fact  of  possession  becomes  of  much  greater 
importance.  And  its  value  as  evidence  is  still  further  increased 
when  both  the  money  found  in  possession  of  the  accused  and  that 
which  was  stolen  consists  of  a  combination  of  a  large  number  of 
Chilian  half-ounces  and  a  single  Peruvian  ounce.  People  v.  Getty, 
49  Cal.  581. 

The  weight  of  footprints,  as  evidence  to  identify  the  accused 
as  the  one  committing  the  crime,  is  greatly  increased  if  they  are 
shown  to  have  not  only  the  same  size  and  shape  of  those  made 
by  the  defendant's  shoes,  but  that  they  have  some  special  pecu- 
liarity corresponding  to  the  defendant's  shoes  or  his  physique. 
Glover  V.  State,  114  Ga.  828  (V-shaped  mark  in  the  heel); 
McGill  V.  State,  25  Tex.  App.  499  (shoe  run  down  at  the  heel, 
and  patched) ;  Green  v.  State.  1 7  Fla.  669  (leg  deformity) ; 
Schoolcraft  v.   People,   117   111.  271   (right  foot  turned  in). 

Circumstances  Drawn  from  Independent  Sources. 

"  One  other  general  remark  on  the  subject  of  circumstantial 
evidence  ^is  this  :  that  inferences  drawn  from  independent  sources 
different  from  each  other,  but  tending  to  the  same  conclusion, 
not  only  support  each  other,  but  do  so  with  an  increased  weight. 
To  illustrate  this,  suppose  the  case  just  mentioned  of  the  wad  of 
a  pistol  consisting  of  part  of  a  ballad,  the  other  part  being  in  the 
pocket  of  the  accused ;  it  is  not  absolutely  conclusive  that  the 
accused  loaded  and  wadded  the  pistol  himself;  he  might  have 
picked  up  the  piece  of  paper  in  the  street.  But  suppose  that  by 
another  and  independent  witness  it  were  proved  that  that  indi- 
vidual purchased  such  a  ballad  at  his  shop;  and  further,  from 
another  witness,  that  he  purchased  such  a  pistol  at  another  shop. 
Here  are  circumstances  from  different  and  independent  sources, 
bearing  upon  the  same  conclusion ;  to  wit,  that  the  accused 
loaded  and  used  the  pistol ;  and  they,  therefore,  have  an  increased 
weight  in  establishing  the  proof  of  the  fact."  Shaw,  C.  J.,  in  Com. 
V.  Webster,  5  Cash.  295,  317. 


422/  AMERICAN   NOTES. 

It  greatly  strengthens  a  case  resting  on  circumstantial  evidence 
and  negatives  the  existence  of  fraud  and  perjury  on  the  part  of 
witnesses  to  show  that  they  have  acted  independently,  and  that 
each  has  reported  the  facts  within  his  knowledge  without  knowing 
the  presence  of  other  witnesses  or  without  knowing  the  existence 
of  the  other  circumstances.  Rex  v.  Genge,  Camp.  13,  3  Enc. 
Evidence,  69. 

Corrobo7-ating  Circumstances. 

Where  an  accomplice  testified  that  he  and  the  defendant  car- 
ried the  body  of  the  deceased  down  to  the  river  at  a  certain  time, 
where  it  was  later  found,  the  accomplice's  wife  may  testify  that  her 
husband  was  absent  from  home  at  the  time  specified.  Lindsay 
V.   People  63  N.  Y.   143. 

Dangers  Itiherent  in   Circumstantial  Evidence. 

And  yet  notwithstanding  the  multitude  of  circumstances  from 
which  an  inference  is  drawn,  that  inference  may  be  incorrect. 
"  In  cases  supported  by  circumstantial  evidence,  juries  should 
remember  that,  although  the  number  of  facts  drawn  from  appar- 
ently independent  sources  renders  concerted  perjury  both  highly 
improbable  in  itself  and  easy  of  detection  if  attempted  ;  yet,  the 
witnesses  in  such  cases  are  more  likely  to  make  unintentional 
misstatements  than  those  who  give  direct  testimony.  The  truth 
of  the  facts  they  attest  depends  frequently  on  minute  and  careful 
observation,  and  experience  teaches  the  danger  of  relying  im- 
plicitly on  the  evidence  of  even  the  most  conscientious  witnesses 
respecting  dates,  time,  distances,  footprints,  handwriting,  admis- 
sions, loose  conversations,  and  questions  of  identity.  Yet  these 
in  general  are  the  links  in  the  chain  of  circumstances  by  which 
guilt  is  sought  to  be  established.  The  number,  too,  of  the  wit- 
nesses, who  must  all  speak  the  truth  or  some  link  will  be  want- 
ing, renders  additional  caution  the  more  necessary.  Besides, 
it  must  be  remembered  that,  in  a  case  of  circumstantial  evidence 
the  facts  are  collected  by  degrees.  Something  occurs  to  raise  a 
suspicion  against  a  particular  party.  Constables  and  police  officers 
are  immediately  on  the  alert,  and,  with  professional  zeal,  ransack 
every  place  and  paper,  and  examine  into  every  circumstance 
which  can  tend  to  establish,  not  his  innocence,  but  his  guilt.     Pre- 


AMERICAN   NOTES.  422^ 

suming  liim  guilty  from  the  first,  they  are  apt  to  consider  his  ac- 
quittal as  a  tacit  reflection  on  their  discrimination  or  skill,  and, 
with  sometliing  like  the  feeling  of  a  keen  sportsman,  they  deter- 
mine, if  possible,  to  bag  their  game.  Though  both  sportsmen  and 
policemen  alike  would  be  horrified  at  anything  unfair  or  'unsports- 
manlike,' yet,  as  both  start  with  this  object  in  view,  it  is  easy  to 
unintentionally  misinterpret  innocent  actions,  to  misunderstand  in- 
nocent words,  — for  men  readily  believe  what  they  anxiously  desire, 
—  and  to  be  ever  ready  to  construe  the  most  harmless  facts  as  con- 
firmations of  preconceived  opinions.  These  feelings  are  common 
alike  to  the  police,  to  counsel,  engineers,  surveyors,  medical  men, 
antiquarians,  and  philosophers  ;  indeed,  to  all  persons  who  first 
assume  that  a  fact  or  system  is  true,  and  then  seek  for  arguments 
to  support  and  prove  its  truth."     i  Taylor  on  Evidence,  §  68. 


APPENDIX 


Note  to  p.  144. 

The  Editor  is  indebted   for  the  following  note  to  his  son, 
W.  A.  Wills,  M.D.,  F.R.C.P. 

During  the  last  three  years  experiments  have  been  carried 
on  by  Bordet  and  Uhlenhuth  which  have  resulted  in  the 
elaboration  of  a  test  by  which  it  is  claimed  that  human  blood 
can  be  distinguished  from  the  blood  of  all  other  animals 
(except,  perhaps,  that  of  the  ape)  ;  and,  further,  that  the 
blood  of  each  individual  animal  can  be  identified.  This  test 
depends  upon  the  fact  that  the  blood  serum  of  one  animal, 
after  certain  treatment,  is  haemotoxic  to  the  blood  of  the 
same  animal  and  to  that  of  no  other,  and  is  closely  akin  to 
the  (Vidal's)  serum  reaction  frequently  used  for  the 
diagnosis  of  enteric  fever.  It  is  equally  applicable  to  fresh 
blood  and  to  blood  stains  which  have  been  dried  and 
exposed  to  the  air  for  some  considerable  time. 

As  this  method  is  little  known,  it  may  be  of  interest  to 
describe  the  technique  in  some  little  detail. 

Ten  cubic  centimetres  of  defibrinated  human  blood  are 
injected  into  the  peritoneal  cavity  of  a  rabbit  every  six  or 
eight  days,  and  after  five  such  injections  the  blood  serum 
or  the  blood  itself  of  the  rabbit  is  available  for  use  as 
follows : 

Dissolve  the  spot  of  blood  that  requires  identification 
in  normal  saline  solution — or,  better,  distilled  water ;  filter, 
and  place  4  or  5  cub.  cent,  in  two  small  test  tubes. 

To  one  of  these  (a)  add  0*5  cub.  cent,  of  rabbit's  blood 


424  APPENDIX. 

made  haemotoxic  as  above  ;  to  the  other  (b)  add  O'l;  cub. 
cent,  of  normal  rabbit's  blood.  A  third  control  tube  (c) 
may  be  made  with  4  or  5  cub.  cent,  of  a  solution  in  distilled 
water  of  the  blood  of  any  other  animal,  except  ape  or  man. 
Place  the  solutions  in  a  warm  chamber  at  37°  C. :  if 
the  spot  of  blood  be  human,  in  an  hour's  time  the  tube  (a) 
will  show  a  turbidity  or  precipitate,  while  (b)  and  (c)  will 
remain  perfectly  limpid. 

This  can  be  even  better  carried  out  in  hanging  drop 
preparations  under  the  microscope.  It  is  necessary  that 
the  quantity  of  serum  used  in  this  test  should  be  carefully 
measured  to  ensure  equal  treatment  of  the  various  tubes. 

It  is  obvious  that  by  preparing  a  number  of  sera  rendered 
haemotoxic  by  the  blood  of  different  animals,  a  spot  of  blood 
of  unknown  origin  can  be  identified,  provided  that  it 
belongs  to  one  of  the  various  species  of  animals  with 
whose  blood  haemotoxic  rabbit  serum  has  been  prepared. 

Vide,  British  Medical  Journal,  March  30,  1901,  p.  7S8. 
Ibid.  Epitome,  June  29,  1 901,  p.  436. 
Journal,  Royal  Microscopical  Society,  1901,  p.  791. 

Note  to  p.  381.     By  The  Editor. 

A  constant  source  of  difficulty  in  judicial  investigations 
lies  in  what  seems  almost  like  an  ineradicable  tendency  of 
human  nature — an  impulse  to  appear  to  know  everything 
about  occurrences  of  which  the  witness  in  reality  knows 
but  a  part,  and  often  a  small  part.  I  have  been  constantly 
struck  with  this  phenomenon  in  cases  of  collision  between 
two  vehicles.  No  matter  how  instantaneous  the  occur- 
rence may  have  been,  the  witnesses,  unless  stunned  at  the 
time,  almost  always  speak  to  every  detail.  It  seems  to 
require  some  moral  courage  to  say  "  I  don't  know."  It  is  not 
that  the  witnesses  mean  to  deceive,  but  they  have  reasoned 
out  what  they  never  really  observed,  and  confound  the  im- 
pressions so  produced  with  those  of  actual  observation.      I 


APPENDIX.  425 

once  met  with  a  bad  carriage  accident  myself.  I  was 
particularly  well  situated  for  observation,  and  was  not 
stunned  for  more  than  a  few  seconds.  I  believe  I  know 
how  it  happened,  but  I  am  conscious  that  I  know  it  only 
by  reasoning  upon  the  little  that  I  did  see.  Had  I  not  had 
the  warning  of  long  professional  experience,  I  hav.-  little 
doubt  that  I  should  have  come  to  suppose  I  had  seen  it  all. 


INDEX. 

(Numbers  refer  to  pages.) 

A. 

ABILITY,  to  commit  a  crime,  154/*,  359 J,  359^*- 
ABORTION, 

other  instances,  1547*- 

possession  of  instruments,  154^*. 

knowledge  of  drugs,  154^*. 

expert  testimony,  I54jr**. 

proof  of  pregnancy,  i^zk. 
ABSENCE    OF    MOTIVE,  213,  237^ 

for  suicide,  359  711. 
ACCIDENT, 

burden  of  proof,  272^,  291,  3597. 

as  defence  in  a  poisoning  case,  336. 

evidence  in  rebuttal,  3597. 
ACCOMPLICE,  corroboration  of,  365,  422/ 
ACTS, 

indicative  of  guilty  consciousness  or  intention,  55,  154^,  154^**, 

359''- 

indicating  guilty  knowledge,  154^',  154^. 

conduct  when  arrested,  154^**. 
ADMISSIONS    OF    GUILT,  implied,  154 /**. 
ADULTERY,  other  acts  to  show  mutual  disposition,  154/*. 
ALIBI, 

as  a  defence,  230,  237  c*. 

time  of  asserting,  232. 

weight  of  as  evidence,  237  d*. 

rebuttal  of,  237/"*. 

attempt  to  establish  a  false,  125,  154  q**,  234. 

cases  where  proved,  244. 

burden  of  proof,  272  r. 

example  of,  2027*,  359^. 
ALLUSIONS,  to  a  contemplated  act,  154?^. 
ANARCHISTS'   CASE,  of  Chicago,  154 <?. 


428  INDEX. 

(Numbers  refer  to  pages.) 

APPEARANCE, 

of  person  of  accused,  1 54  x*. 

of  clotliing,  154  y*. 
APPEARANCES    OF    SUSPICION,  81,  155  x*. 

failure  to  explain,  154J*,  154^**. 

caution  in  relying  on,  I54rt;**. 
APPENDIX,  test  for  human  blood,  423. 
APPREHENSION,  of  danger  to  show  self-defence,  237^. 
ARREST, 

evasion  of,  154  e**. 

explanation  of  evading,  237  v. 

crime  to  escape,  1 54  n. 
ARSENIC,  test  for,  138,  311. 
ARSON, 

other  fires,  59,  1547*- 

motives  for,  154^. 

possession  of  stolen  property  to  prove,  yy. 

other  attempts,  154/*- 

instruments  to  commit,  I54<?*. 

corpus  delicti  in,  359  a. 
ARTICLES    OF    PROPERTY, 

identification  of,  178-183,  202/,  zozp,  202  i*. 

laundry  marks,  202  r. 

color  and  smell,  202  r. 

cattle  brands,  202  r. 

to  identify  dead  body,  359^. 
ASSURANCE,  produced  by  circumstantial  evidence,  18^. 
ATTEMPTS, 

to  compromise,  154^**. 

to  escape,  1 54  /**. 

to  divert  suspicion,  154;/**,  359/,  390. 

to  poison,  321. 

to  prove  commission  of  subsequent  crime,  154/*. 

to  influence  witnesses  and  officials,  349. 
AUTHENTICITY     OF     DOCUMENTS,     195-201.       See    Com- 
parison. 

B. 

BASTARD      CASES,  237^. 

identity  of  father,  202  c. 
BERTILLON    METHOD  of  identifying  criminals,  202  n. 
BEST   EVIDENCE    RULE,  259,  272  ^. 

criticised,  272  c. 

proof  of  former  testimony,  272  d. 


INDEX.  429 

(Numbers  refer  to  pages.) 

BLOOD,  test  for,  423. 
BLOODHOUxND,  used  to  identify,  202 /&. 
BLOOD    STAINS, 

obliteration  of,  1 17. 

expert  evidence,  143,  1547-'**. 

false  explanations  of,  1542:*. 

identification  by,  174,  202^,  202/',  384. 

case  where  they  were  explained,  250. 

to  prove  corpus  delicti,  3S9^^- 

in  homicide,  359  r,  359/,  359^^. 
BODY   OF    DECEASED, 

identification  of,  288. 

posi  ino7-teiii  appearances,  294. 

need  not  be  found,  282,  359 1',  359^. 
BRIBERY, 

other  acts,  154  d?*. 

of  witnesses,  113,  154;;/**. 

of  jurors,  1 54  «**. 
BULLETS,  used  to  identify,  166,  202  j. 
BURDEN    OF    PRODUCING    EVIDENCE,  272;;/. 
BURDEN    OF    PROOF, 

on  party  asserting  a  fact,  255,  2j2b. 

in  criminal  cases,  272 /«. 

on  defendant,  272  /,  272  o. 

mitigating  circumstances,  272  /,  272  <?. 

insanity,  272 />. 

alibi,  272  r. 
BURGLAR'S    TOOLS,  possession  of,  154;;*,  202/. 
BURGLARY, 

possession  of  the  stolen  goods,  154/*. 

possession  of  tools,  202 1. 


c. 

CAPACITY   TO   COMMIT   CRIME,  203.     See  Insanity. 

CAPITAL    PUNISHMENT,  Austrian  code,  367. 

CATTLE    BRANDS,  202;'. 

CAUSE   OF    DEATH,  proof  of,   291,   359//,  359''-      See  Corpus 

DELICTI. 

CHARACTER    OF   ACCUSED,  226,  237  ^*,  237^'*. 
particular  facts,  229,  237  h*. 
of  deceased  to  show  self-defence.  237  h. 
of  third  persons,  237  /. 


430  INDEX. 

(Numbers  refer  to  pages.) 

CHARACTER  OF  ACC\J ^ILU  —  Conthuud. 

of  prosecutrix  in  rape,  20S,  237  /. 

weight  of,  as  evidence,  237  c*. 

not  disposition.  237//*. 

Webster's  trial,  359/. 
CHARACTERISTICS  of  circumstantial  evidence,  19,  46  «. 

CHASTITY, 

reputation  for,  208,  237  t. 

particular  acts,  237  n. 

proof  of,  272  /,  272  s. 
CHEMICAL    ANALYSIS,  in  poisoning  cases,  310,  359  2-,  359 /;*. 
CIRCUMSTANCES, 

to  be  clearly  proved,  238,  272  a. 

burden  of  proof,  255. 

must  be  incapable  of  explanation  except  by  guilt,  262,  272  e. 

concurrence  of  many,  368,  422  d. 

inconsistency  of,  379. 

weight  of,  as  basis  for  inference,  422  a. 
CIRCUMSTANTIAL   EVIDENCE, 

to  prove  other  circumstances,  18^. 

too  remote,  187'. 

essential  characteristics,  19,  46  «. 

relative  value  of,  34,  46  e. 

compared  with  direct,  34,  46  e. 

sources  and  classification  of,  43,  46  /. 

fallibility  of,  46  /. 

comparative  liability  to  error,  46^. 

caution  required,  46/^. 

credibility  of,  204. 

rules  of  induction  applicable  to,  238. 

to  prove  corpus  delicti,  274,  359 1,  359  w,  3592". 

to  identify  body,  289,  359/. 

force  and  effect  of,  360. 

capital  punishment,  Austrian  code,  367. 

considerations  augmenting  force  of,  368,  422^. 

compared  to  a  chain,  369. 

difficulty  of  fabricating,  373. 

illustrations  of  force  of,  383. 

necessity  of,  421. 

dangers  inherent  in,  422/". 
CLASSIFICATION  of  circumstantial  evidence,  43,  46  w. 

of  presumptions,  422  a. 
CLEAR    PROOF,  of  circumstances,  238.  272  a. 
CLOTHING,  to  identify,  166,  202  d,  202  /*. 


INDEX.  431 

(Numbers  refer  to  pages.) 

COLT,  JOHN  C,  trial  of,  359/. 
COMPARISON 

of  handwriting,  185. 

by  experts,  185,  202  iv. 

by  the  jury,  202  w. 

by  lay  witnesses,  202  z. 

standard  of,  202  a*. 

genuineness  of  standard,  202  a*. 

letterpress  and  photographic  copies,  202  c*. 

People  V.  Molineux,  202  f*.  359^*. 

trial  of  Richard  P.  Robinson,  202^*,  202/1*. 
COMPLAINTS 

in  rape,  207,  237  r. 

terms  of,  237  s. 
CONCEALMENT, 

as  indicating  guilt,  107. 

of  death  in  homicide,  118. 

of  the  dead  body,  119,  292,  359  /,  359  z/. 

of  another  crime  as  motive,  I54«. 

of  illicit  intercourse,  154//,  388. 

of  marriage,  1 54  k. 

of  misdoing  as  motive  for  false  accusation,  207. 

of  death  of  child,  215. 

lack  of,  to  show  innocence,  218. 
CONCLUSION,  420. 

CONCLUSIVE    PRESUMPTIONS,  exculpatory,  237^. 
CONCLUSIVE    PROOF  defined,  18  t-. 
CONCURRENCE  of  many  circumstances,  368. 
CONDUCT, 

when  arrested,  I54<^**. 

during  trial,  154^;^**. 

of  injured  party  to  show  fact  of  crime,  207. 

to  raise  presumption  of  innocence,  211,  237  a*.     See  Acts  and 
Declarations. 

in  poisoning  cases,  317. 

to  prove  corpus  delicti,  359*5. 
CONFESSIONAL    EVIDENCE, 

indirect,  91,  i54<r** 

reliability  of  confessions,  91. 

false  confessions,  93-98. 

reliability  of  indirect  confessional  evidence,  102,  \i\b*'*. 

implied  admissions  of  guilt,  154  i**. 
CONFESSIONS, 

corroboration  required,  ZSOP- 

of  third  persons,  237  n. 


432  INDEX. 

(Numbers  refer  to  pages.) 

CONSCIOUSNESS 

of  guilt,  55,  i54.f,  i54<5**. 

demeanor  to  indicate,  154  a',  3SS. 

of  innocence,  211,  237  a*. 
CONSISTENCY  of  many  circumstances,  36S,  422  d. 
CONSPIRACY,  I54y*. 

CONTRADICTORY    STATEMENTS,  154^*:'. 
CORPUS  DELICT/, 

scientific  testimony,  137. 

cases  where  not  proved,  148. 

to  be  proved  beyond  reasonable  doubt,  266,  359  a. 

proof  of,  273,  274,  359 .?,  359^. 

in  homicide,  282,  359  d. 

identification  of  body,  288,  359/"- 

in  poisoning  cases,  294. 

in  infanticide,  352. 

defined,  359  «• 

body  need  not  be  found,  282,  359^,  359^- 

instances  of  sufficient  proof,  359  w. 

instances  of  insufficient  proof,  248,  359  71. 

corroboration  of  confession  I'cquired,  lS9p- 

Webster's  trial,  359  v. 
CORROBORATION  of  prosecutrix  in  rape,  364. 

of  accomplice,  365,  422/'. 
COUNTERFEITING, 

other  utterances,  58,  154/r*. 

possession  of  counterfeit  money,  65,  154//*. 

possession  of  instruments,  \^^o*. 
CRIMINAL   CONVERSATION,  154^*. 

CRIMINAL    ORGANIZATION,     membership    in    as    motive   for 
homicide,  154/. 

D. 

DANGEROUS    CHARACTER  of  deceased  in  homicide,  237/^. 

of  third  persons,  237  /. 
DATES,  verification  of,  195,  202 1*. 
DEATH, 

cause  of,  291,  359  //. 

proof  of,  359  d. 

indirectly  caused,  359  i. 

head  of  deceased  produced  in  court,  359  u. 

in  poisoning  cases,  3595-. 

in  infanticide,  359/*. 


INDEX.  433 

(Numbers  refer  to  pages.) 

DECLARATIONS, 

indicative  of  guilty  consciousness,  55,  1545',  1^4^**' 

to  prove  intent,  154/. 

of  purpose  on  leaving  home,  154  le. 

allusions  to  a  contemplated  act,  154?/. 

threats,  154.1-. 

of  deceased  to  prove  suicide,  359^. 
DEFENCE    OF    ANOTHER,  237 /. 
DEMEANOR, 

to  indicate  innocence,  211,  237  a*. 

to  show  guilt,  iS4-^- 

See  Acts,  Suspicious  Circumstances. 
DESTRUCTION    OF    EVIDENCE,   iii,   154^?**,  326,  332,  33S, 

348- 
DIRECT    EVIDENCE, 

distinguished  from  indirect,  19. 

relative  value  of,  34,  46  c. 

preferred  to  circumstantial,  46//,  272^. 

fallibility  of,  46  /. 
DISCREPANCY, 

as  to  minor  circumstances,  379. 

instances  of,  38 1. 
DISGUISE,  as  indicating  guilt,  107. 
DISPOSITION,  to  show  character,  237//*. 
DOCUMENTARY    CIRCUMSTANTIAL    EVIDENCE,  5. 
DONELLAN'S    CASE,  114,  324. 
DOUBT, 

proof  beyond  any  reasonable,  266. 

defined,  272  h. 

"on  part  of  one  juror,  2727. 


E. 

ESCAPE, 

attempted,  154/**. 

refusal  to,  237  a*. 
EVASION    OF   ARREST,  154^** 

explanation  of,  237  7^ 
EVIDENCE, 

nature  of,  i. 

definition,  2,  18  a. 

kinds  of,  3. 

moral,  4,  i8_X"  360. 


434  INDEX. 

(Numbers  refer  to  pages.) 

EVIDENCE—  0///////^''/. 

positive  and  negative,  iS  a,  383. 

order  of,  18  i,'. 

weight  of.  184'. 

too  remote,  iSy. 

indirect.     Sec  Circumstantial  Evidence. 

presumptive,  21. 

direct  preferred,  46//,  272  c/. 

suppression,  destruction,  and  fabrication  of,  11 1,  154/**. 

confessional,  91. 
EXCULPATORY    FACTS,  burden  of  proof,  272/,  272  m. 
EXCULPATORY    PRESUMPTIONS,  203,  237  a. 
EXPERIENCE, 

the  standard  of  credibility,  12,  18/. 

reliability  of,  i8^;f. 
EXPERIMENTS,  154^**. 

to  show  impossibility,  237  «. 

to  rebut  claim  of  suicide,  359  m. 
EXPERT    TESTIMONY,  137. 

value  of,  154/**,  192,  202_y. 

qualification  of  experts,  154/**,  202  ;r. 

in  poisoning  cases,  154?^**,  310,  359  •^• 

blood  stains,  154 -z/**,  202^. 

experiments,  154  w**. 

cause  of  an  injury  or  death,  154;!'**. 

rape  and  abortion,  1 54  x**. 

pregnancy,  i54_y**. 

to  show  time  since  death,  202. 

handwriting,  142,  185,  202  w,  202<-/*. 

weight  of,  192,  202 J. 
EXPLANATIONS, 

of  suspicious  circumstances,  81,  221,  zyj  ti- 

time  made,  84. 

of  possession  of  fruits  of  crime,  68,  80,  154X*. 

See  False  explanations. 
EXTRINSIC   INCULPATORY    INDICATIONS,  155. 


FABRICATION    OF    EVIDENCE,  1 11,  154^**,  208. 
difficulty  of,  373. 

of  evidence  to  divert  suspicion,  225. 
of  alibi,  234,  237/*   125,  154^**. 


INDEX.  435 

(N'umbers  refer  to  pages.) 

FAILURE, 

to  explain  suspicious  circumstances,  I54_y*,  154;'**. 

to  call  witnesses,  154  r**. 

to  testify,  1 54  j**. 

to  produce  evidence,  272  e. 
FALSE    ACCUSATIONS,  208. 

of  rape,  207. 
FALSE    ALIBI,  125,  154$?**,  234,  237/*. 
FALSE    CONFESSIONS,  93-98. 
FALSE    EXPLANATIONS,  66,  154^**. 

of  possession  of  fruits  of  crime,  68,  80,  154:1:*,  \^^a**. 

of  suspicious  appearances,  81,  154^*,  1545'*,  384. 

in  larceny,  154  a** 
FAMILY    LIKENESS,  to  prove  identity,  164,  202^. 
FEUDS,  to  prove  homicide,  154//,  I'^^b*. 
FLIGHT,  107,  154^**. 

preparation  to  fly,  154^*. 

of  accomplice,  154^**. 

instructions  to  jury,  154//  **. 

lack  of  to  show  innocence,  218. 

explanation  of,  237  w. 
FOOTPRINTS, 

to  identify,  1 71-178,  202 /;. 

cases  where  used  to  identify,  244,  252,  359  r,  384. 
FORCE    OF    CIRCUMSTANTIAL    EVIDENCE,  360. 

considerations  augmenting,  368,  422^. 

illustrations  of,  383. 
FOREKNOWLEDGE    OF    DEATH,   154a/,  154  ;*,  120,  325. 
FORFEITING    BAIL,  154/^** 
FORGERY, 

other  like  offences,  58,  154^*- 

possession  of  instruments,  154(9*. 

skill  of  defendant,  154^*. 

of  letter  to  indicate  suicide,  125. 

proof  of  handwriting,  189,  402,  413. 

internal  contents  of  document  to  detect,  195-201,  402,  413. 

Matlock  will  case,  402. 
FORMER   TESTIMONY,  proof  of,  272^. 
FRAUD,  other  crimes  to  show  intent,  154^^*,  154/"*. 
FRUITS    OF   CRIME, 

recent  possession,  68,  154  j'*-i54jr*  202  j-,  348,  3591!^,  359  ^. 

possession  by  another  than  defendant,  154  w*. 


436  INDEX. 

(Numbers  refer  to  pages.) 


GENERAL   REPUTATION.    Scr  Character. 
GENUINENESS  of  documents,  195-201.     See  Comparison. 
GRIEF,  affectation  of,  120,  154/**. 
GROUNDS    OF    FAITH  in  circumstantial  evidence,  360. 

GUILT, 

otlier  reasonable  hypotheses  must  be  excluded,  262,  272  e. 

to  be  proved  be3-ond  reasonable  doubt,  266,  272 /;. 

incompatibility  of  one  fact  with,  272  i,'^. 
GUILTY   CONSCIOUSNESS,  declarations  and  acts  indicative  of, 

55,  1 54  J,  I54.ir,  154^**,  388. 
GUILTY    KNOWLEDGE, 

possession  of,  1547/. 

conduct  indicating,  1547/,  419. 

of  receiver  of  stolen  goods,  154/"*. 

in  uttering  counterfeit  money,  154/i*. 
GUN -WAD  DING,  to  identify,  170,  202  _^,  202  s. 


H. 

HANDWRITING, 

expert  evidence,  142. 

opinion  evidence,  202  u. 

proof  of,  184,  202  u. 

comparison  of,  185,  202  lu,  202  e*. 

imitation  of,  189. 

weight  of  evidence  as  to,  192,  202/. 

misspelt  words,  194,  197. 

qualification  of  experts,  202  x. 

illegible,  202^. 

testing  expert's  opinion,  202_y. 

refreshing  memory  of.  202  s. 

belief  of  witness  as  to  handwriting,  202/*. 

proof  of  forgery  by,  402,  413. 

Webster's  trial,  359 j. 

Molineux  case,  359  d*,  202  e*. 

Matlock  will  case,  402. 
HATRED  of  deceased  to  show  self-defence,  237/'. 
HOMICIDE, 

motives  for,  1 54/'. 

relations  between  deceased  and  defendant,  154^. 


ini)l:x.  437 

(Numbers  refer  to  pages.) 


HOMICI DE  —  Continued. 
revenge,  i54ir- 

discharge  of  employee,  \l\h. 
neighborhood  feud,  154/',  ^■S^b*. 
jealousy,  1 54  ^'• 
unrequited  love,  154/- 
race  antipathies,  154/. 

membership  in  a  criminal  organization,  154^ 
relations  with  wife  of  deceased,  1547- 
wife-murder,  1547- 
concealment  of  marriage,  154 -i'. 
to  escape  arrest,  I54«. 
state  of  mind  in,  \i\u. 
foreknowledge  of  death,  154W. 
previous  quarrels,  154^*. 
feuds,  154/^  154'^* 
prior  attempts,  154^*- 
possession  of  instruments,  I54;«*. 
relative  strength  of  defendant,  154/'* 

knowledge  of  weapons,  154''*- 

possession  of  fruits  of  the  crime,  154/*,  IS4« 

proof  of  degree  of,  272  k,  272  o. 

proof  oi  corpus  delicti,  282,  359  </• 

production  of  body,  282,  359  f. 

poisoning  cases,  294,  359  2. 

infanticide,  352,  359/^*- 

false  confessions,  93-98. 

expert  testimony,  I37,  1 54  ■»■**-!  54 -*''' 

concealment  of  illicit  intercourse,  1 54  «'  38^- 

self-defence,  237  c. 

suicide  as  a  defence,  237  q. 
HORSE-TRACKS,  to  identify,  177,  2027 

I. 

IDENTIFICATION, 

of  stolen  property,  79- 
of  person,  156,  202  a. 
i  cases  of  mistaken,  156. 

light  necessary  for,  159. 

personal  peculiarities,  161,  202  «,  202^,  202 j   . 
by  family  likeness,  164,  202^. 
by  wounds,  166,  202  c. 
by  photographs,  165,  202  c,  3S9J^- 
by  voice,  165,  202^. 
by  clothing,  166,  202  (f,  202  i*,  384,  393- 


438  INDEX. 

(Numbers  refer  to  pages.) 

IDENTIFICATION  —  Continue,/. 
by  bullets,  i66,  202  s. 
by  articles  of  property,  167,  202/  202  z* 
by  torn  paper,  169. 
by  gun-wadding,  170,  202^4'-,  202  j. 
by  footprints,  171-178.  202//,  384. 
by  blood  stains,  174,  202  e,  202  k,  384. 
of  articles  of  property,  178-183,  202/  202/. 
by  proof  of  other  crimes,  202_<;. 
by  horse  and  wagon  tracks,  i  JT,  202  j. 
by  bloodhound,  202  k. 
sufficiency  of,  202  /. 
Bertillon  method,  202  n. 
case  of  incorrect,  250,  252. 

beyond  reasonable  doubt,  266,  272  h,  272  k,  272  /. 
of  body  of  deceased,  285,  288,  359/  359 -i^- 
rebuttal  evidence,  22,'] y. 

IDENTITY, 

denial  of,  154  c/**. 

questions  of,  155,  202  a. 

See  Identification. 
ILLEGAL   SALES    OF    LIQUOR,  154/* 
ILLEGITIMATE    CHILD, 

death  of,  215. 

presumption  from  concealment,  216. 

corpus  delicti,  352. 

proof  of  death,  359^. 
ILLICIT    INTERCOURSE, 

concealment  of  as  a  motive,  154;/. 

other  instances,  I54>t*. 

homicide  to  conceal,  388. 
INCONSISTENCY   OF    CIRCUMSTANCES,  379. 
INCULPATORY    FACTS,  must  be  incompatible  with    innocence, 

262,  272^. 
INCULPATORY    INDICATIONS, 

moral,  47. 

extrinsic  and  mechanical,  155. 
INDEPENDENT  CIRCUMSTANCES,  concurrence  of,  368,  422^/. 
INDIFFERENCE,  to  show  desire  for  another's  death,  154  jr. 
INDIRECT   CONFESSIONAL   EVIDENCE,  91,  154^**. 

reliability  of,  102. 

weight  of,  1 54  b**. 

implied  admissions  of  guilt,  154/**. 

silence,  1547**. 


INDEX.  439 

(Numbers  refer  to  pages.) 

INDIRECT    EVIDENCE.     Sec  Ci-rcumstantial. 

INDUCTION,  rules  of,  238. 

INFANTICIDE, 

proof  of  corpus  delicti,  352,  359 -f,  359/'*. 

presumptions,  215,  216,  355. 

pregnancy,  352,  359  z*. 

proof  of  birth  alive,  353,  359  i*. 

motives,  355. 

casualties  of  birth,  356. 

proof  of  death,  359  e. 

cause  of  death,  359  /'*. 

sufificiency  of  evidence,  3597. 
INFERENCES    FROM    INFERENCES,  18^. 
INNOCENCE, 

presumption  of,  204,  211,  237  <5. 

consciousness  of,  211,  237  «*. 

facts  proved  must  be  wholly  inconsistent  with,  262,  272^. 

absolute  impossibility  of,  272g. 
INSANITY, 

expert  testimony,  137. 

feigned,  154^**, 

burden  of  proving,  2j2p. 

preponderance  required,  272  p. 

burden  on  state,  272  r. 
INSURANCE    MONEY,  as  motive,  120,  359.^*. 
INTENTION    TO    COMMIT    CRIME, 

declaration  and  acts  indicative  of,  55,  154  J",  154/. 

threats,  1 54  x. 

system  to  show  intent,  154  /*. 
INTIMIDATION    OF    WITNESSES,  1 13,  154  ;«**,  359 /&. 
INTOXICATION,  as  a  defence,  237  «. 
INTUITION,  3. 


J. 


JEALOUSY, 

as  a  motive  for  homicide,  154/^  202^*. 

as  motive  for  charging  a  crime,  206. 
JUDGMENT,  the,  defined,  2. 
JUSTIFICATION, 

proof  of  facts,  272  /. 

burden  of  proof,  272  ;;/. 


440  INDEX. 

(Xiinibeis  refer  to  pages.) 


L. 


LARCENY, 

other  tliefts,  154^*,  154/*. 

recent  possession  of  the  stolen  goods,  68,  154  J"*,  1547/*,  154  a**. 

proof  of  facts,  272  /. 
LAUNDRY    MARKS, 

to  identify  property,  202  r. 

as  a  clue,  415. 
LEGAL    PRESUMPTIONS,  23. 
LIGHT    PRESUMPTIONS,  422  <5. 
LINKS    IN    CHAIN    OF    EVIDENCE,  272 «. 
LIQUOR   SALES,  154  z*. 


M. 

MALICE,  154  X. 

declarations  to  prove,  154/. 

previous  quarrels,  154  a*. 

proof  of,  272  A. 

burden  of  proof,  272  n. 
MALPRACTICE,  death  ascribed  to,  272s. 
MATLOCK    WILL   CASE,  402. 

MECHANICAL    INCULPATORY    INDICATIONS,  155. 
MINOR    DISCREPANCIES,  379. 

instances  of,  381. 
MISSPELT    WORDS, 

to  identify  handwriting,  194,  402. 

to  prove  forgery,  409. 
MITIGATING    CIRCUMSTANCES,  proof  of,  272/,  272 //z,  272^. 
MOLINEUX    CASE,  202^*,  359^*. 
MORAL    CERTAINTY,  8,  272/ 
MORAL   EVIDENCE,  4,  18/. 

grounds  of  faith  in,  360. 
MORAL    INDICATIONS,  inculpatory,  47. 
MOTIVE, 

not  necessary  to  be  proved,  \8/.  154  f. 

of  third  person  to  procure  murder,  1541^0 

probative  value,  154  <5. 

failure  to  prove,  i^^d. 

other  crimes  to  show,  154 /«,  I54£'*. 

previous  quarrels,  1^4.  a*. 


INDEX.  441 

(Numbers  refer  to  pages.) 


MOTIVE,  —  Continued. 

system,  to  show,  154/*. 

of  the  prosecuting  witness,  20S. 

absence  of,  213,  237J. 

innocent,  237  2. 

evidence  in  rebuttal,  237  z. 

to  rebut  claim  of  accident.  3597. 
MOTIVES    TO    CRIME,  47,  154 «. 

lapse  of  time  as  affecting,  \SA<^- 

desire  for  wealth,  I54(/,  152*324. 

financial  necessity,  154^,  331,  344,  359  w,  390. 

life  insurance  money,  154^',  120,  359^j^*. 

for  arson,  154^. 

for  robbery,  154/". 

for  homicide,  154/^ 

concealing  defalcations,  154^. 

not  to  commit  a  crime,  217. 

of  third  persons,  237  o. 
MURDER, 

other  murders,  60. 

motives  for,  154/". 

See  Homicide. 


N. 

NATURAL   PRESUMPTION.S,  23. 
NATURE    OF    THE    ASSURANCE 

produced  by  evidence,  5,  18^. 

by  circumstances,  18^. 
NEGATIVE    EVIDENCE,  weight  of,  18^,  3S3. 


o. 

OBLITERATION    OF    EVIDENCE,  1 17. 

OMISSIONS    IN    ACCOUNTS    OF    WITNESSES,  382. 

OPINION,  as  to  identity,  359/^. 

of  experts,  141,  154/**. 

See  Expert  Testimony. 

See  Handwriting. 
OPPORTUNITY, 

to  commit  crime,  65,  68,  \^:\o*. 

presence  at  place  of  crime,  154/*,  359  r. 

to  give  poison,  297. 


442  INDEX. 

(Numbers  refer  to  pages.) 

ORDER   OF   EVIDENCE,  i8^. 
ORTHOGRAPHY, 

to  prove  autlienticity  of  instruments,  194,  197. 

to  prove  forgery,  409. 
OTHER   CRIMES, 

to  show  motive,  154  w. 

concealment  of,  I54«. 

proof  of,  in  general,  154^. 

when  not  admissible,  i^^d*. 

when  admissible,  154^*. 

to  prove  identity,  202^^. 

former  acts  of  poisoning,  321,  359  <^*. 

proof  of —  Molineux  case,  359  i*. 

to  rebut  claim  of  accident,  359  ^. 


PARTICULAR  ACTS,  to  show  character,  237  /i*. 
PECULIARITIES  of  personal  appearance,  161,  202a,  2020,  202  J*. 
PERJURY, 

other  instances,  154/^*. 

number  of  witnesses  required,  363. 
PERSONAL   APPEARANCE, 

to  identify,  161,  202  a. 

of  accused,  154  a'*. 
PERSONAL  PECULIARITIES,  to  identify  dead  body,  359/ 359  a-. 
PHOTOGRAPHS, 

used  to  identify,  165,  202  c. 

to  identify  dead  body,  359^- 
POISON,  possession  of,  I54«*,  296,  359/"*. 
POISONING    CASES, 

proof  of  corpus  delicti,  294,  359  2. 

possession  of  poison,  296,  I54«*,  359/"*. 

opportunity  to  administer  poison,  297. 

conduct  of  accused,  317. 

former  attempts,  321. 

Donellan's  case,  114,  324. 

Molineux  case,  359 (^*. 

other  cases,  359^* 

other  like  crimes,  60,  154  w,  IS4<?*,  154/^*. 

case  of  Sarah  Jane  Robinson,  120. 

expert  evidence,  1 54  71**. 


INDEX.  443 

(Numbers  refer  to  pages.) 

POSITIVE    AND    NEGATIVE    EVIDENCE,  i8<7,  3S3. 
POSSESSION, 

of  means  to  commit  crime,  65,  i  ^4m*-iS-\o*,  202  /,  359;'. 

false  explanations,  66. 

of  the  fruits  of  crime,  68,  154  j*,- 154  a-*,  202  s,  348,  359^. 

of  the  fruits  of  a  series  of  crimes,  72- 

of  instruments  to  kill,  154;/'/*. 

of  poison,  154  «*,  296,  359/"*. 

of  burglar's  tools,  154  «*,  202  /. 
POSSESSION    OF    STOLEN    GOODS, 

rebutting  inference  from,  219. 

explanation  of,  237  w. 
POST  MORTEM  appearances,  294. 
POST-OFFICE    MARKS  to  prove  dates,  202. 
PREDICTIONS, 

of  death,  to  sliow  homicide,  66,  154  ■if,  154/"'*,  120,  325. 

of  a  fire,  I54.y*. 
PREGNANCY, 

expert  testimony,  154^'**. 

proof  of  in  abortion,  272  k. 

in  infanticide,  352. 
PREMEDITATION,   154.^. 
PREPARATIONS, 

to  commit  crime,  65,  154/*,  154  r*. 

false  stories  to  prepare  others,  66,  120,  325,  339. 

to  fly,  154^**. 
PRESUMPTIONS,  22,  dfib. 

necessary,  probable,  and  slight,  32. 

defined,  46  c. 

conclusive,  46^. 

of  law,  46  c. 

of  fact,  46^,  154  w*. 

statutory,  46^,  128. 

classification  of,  422  a,  32. 

exculpatory,  203. 

of  innocence,  204,  211,  237^. 

from  concealment  of  death,  215. 

conclusive,  237  a. 

of  coercion  by  husband,  237  a,  203. 

from  failure  to  produce  evidence,  256,  272  e. 
PRESUMPTIVE    EVIDENCE,  21. 
PREVIOUS  bad  character,  226,  237^*,  237^*. 
PRIMA    FACIE  case,  272  /. 
PRIOR   ATTEMPTS,  154/.     .Jtr  Attempts. 


444  INDEX. 

(Numbers  refer  to  pages.) 

PROBABILITY 
defined,  6. 
distinguished  from  certainty,  8. 

TROOF 

distinguished  from  evidence,  2. 

conclusive,  iS  c. 

beyond  any  reasonable  doubt,  266,  272  h. 

defined,  272  //. 

amount  of  evidence  necessary,  2727. 
PROPERTY, 

identification  of,  178-183,  202/,  202/,  202/. 

laundry  marks,  202  r. 

color  and  smell,  202  r. 

cattle  brands,  202  r. 
PRUSSIC   ACID  case,  313,  336. 


QUARRELS 

previous  to  the  crime,  154^*. 
details  of,  \^\b*. 

R. 

RACE    ANTIPATHY,  as  motive  for  homicide,  154/. 
RAPE, 

suppression  of  evidence,  127. 

other  crimes  to  prove,  154^*. 

expert  testimony,  I54r**. 

complaint  of  woman,  207,  237  r. 

character  of  prosecutrix,  208,  237  t. 

burden  of  proof,  272  j. 

corroboration  of  prosecutrix,  364. 
REASONABLE    DOUBT, 

connecting  evidential  facts  \N\ihfaciii//i})robatidnin,  238. 

guilt  must  be  proved  beyond,  266,  272  h. 

defined,  272  h. 

amount  of  evidence  necessary,  2727. 

alibi  to  create,  237  e*. 
REBUTTAL 

of  self-defence,  237  fn. 

of  motive,  237  z. 

of  alibi,  237/"*. 

of  inference  from  suspicious  circumstances,  221. 


INDEX.  445 

(Numbers  refer  to  pages.) 

RECEIVING 

stolen  goods,  6i. 

recent  possession,  75. 

other  instances,  154  £*. 
RECENT    POSSESSION 

of  fruits  of  crime,  68,  154  j-*- 154.1-*  202  .r,  348,  359/^,  3597'. 

inability  to  explain,  69. 

of  fruits  of  a  series  of  crimes,  73. 

may  make  out  Ti.  pri7}ia  facie  case,  154  v*. 
REFRESHING    MEMORY,  as  to  handwriting,  202  ^. 
REFUSAL  to  escape,  237  a*. 
RELEVANCY,  18^. 
REMOTENESS  of  evidence,  187. 
REPUTATION.     See  Characteu. 
RES  INTER  ALIOS,  154^/*. 
REVENGE,  as  a  motive  for  homicide,  154^. 

as  motive  for  false  accusation,  210. 
ROBBERY, 

motives  for,  154/". 

possession  of  the  fruits  to  prove,  154  /*,  202  j,  359  b. 
ROBINSON,  RICHARD  P.,  trial  of,  202/*,  202//*. 
RULES    OF    INDUCTION,  applicable  to  circumstantial  evidence, 

238. 

S. 

SCIENTIFIC   TESTIMONY,  137,  154^** 

to  prove  corpus  delicti,  310.  359  ". 

See  Expert  Testimony. 
SECONDARY    EVIDENCE,  260. 
SEDUCTION, 

proof  of  chastity,  272  /. 

character  of  woman,  208,  237  /. 
SELF-DEFENCE, 

in  homicide,  237  c. 

apprehension  of  danger,  237  d. 

burden  of  proving,  272  w,  272  o. 

burden  on  defendant,  272  q. 

burden  on  state,  272  r. 

trial  of  John  C.  Colt,  359  /. 
SIMILAR    ACTS,  proof  of,  154 r*. 
SIGNATURE,  forgery  of,  414. 
SILENCE,  as  an  admission,  1547**. 


446  INDEX. 

(\ umbers  refer  to  pages.) 

SIMULATION 

of  evidence,  in. 

of  suicide,  122. 
SIZE,  of  deceased  to  .show  self-defence,  237/. 
SOURCES    OF   CIRCUMSTANTIAL   EVIDENCE,  43,  46 /. 
STATEMENTS.    See  Declarations. 
STATE   OF    MIND    IN    HOMICIDE,  154 ;/. 
STATUTORY    PRESUMPTIONS,  46  rt',  128. 
STOLEN    PROPERTY, 

possession  of,  68,  154  j*-I54  a-*,  202  j. 

recency  of  the  possession,  70,  \^\v*-\i\x*. 

exclusiveness  of  possession,  71. 

series  of  thefts,  73. 

weight  of  possession  as  evidence,  IT,  154  v*. 

identification  of,  79. 

rebutting  inference  from  possession  of,  219,  237  w. 
SUBORNATION  of  witnesses  and  officers,  113,  154///**  349. 
SUBSIDIARY    FACTS,  proof  of,  272  a,  281. 
SUICIDE,  291,  293,  359^. 

declarations  of  deceased,  359/1'. 

evidence  in  rebuttal,  359  f»,  359  «*• 

absence  of  motive  for,  359  w. 

by  poison,  ^^ga*. 

simulations  of,  122. 

evidence  of,  237  g. 

intention  to  commit,  237  g. 

motives  for,  237  r. 

indications  of,  224. 
SUPPRESSION    OF   EVIDENCE,  in,  154 /**,  259. 
SURRENDER    TO    JUSTICE,  voluntary,  218,  237  a*. 
SUSPICION,  attempts  to  divert,  t54«**,  359/,  390. 
SUSPICIOUS    CIRCUMSTANCES,  81,  154:^*. 

explanation  of,  221,  lyj  u. 

concurrence  of  many,  368,  422  d. 

cases  where  explained,  240,  242,  250. 

failure  to  explain,  256,  154^*,  154  r**. 

in  poisoning  cases,  321. 

Webster's  trial,  3597/. 
SUSPICIOUS    CONDUCT,  154J*  359  r,  321. 

caution  in  relying  on,  154  a**. 

when  arrested,  154^^**. 

See  Conduct,  Acts,  Suspicious  Circumstances. 
SYSTEM,  to  show  motive  or  intent,  154/*. 


INDEX.  447 

(Numbers  refer  to  pages.) 


T. 


TEETH,  as  a  means  of  identification,  291,  359/",  359  t/. 

TEST    OF    ADMISSIBILITY    OF    CIRCUMSTANCES,  18  ^. 

TESTIMONY,  4,  18  a. 

credibility  of,  204. 

scientific,  137,  1545**. 

See  Expert  Testimony. 
THEFT.     See  Larce.ny. 
THIRD    PERSONS, 

evidence  to  show  guilt  of,  237  n. 

threats  of,  237/- 

motives  of,  237  0. 
THREATS,  55,  I54.r. 

general  threats,  I54>'. 

against  a  class,  154^'. 

against  third  persons,  I54_y. 

to  commit  a  different  crime,  1542". 

with  a  different  weapon,  154.?. 

uncommunicated,  1545",  237^. 

time  made,  154  a*. 

of  deceased  to  show  self-defence,  237^. 

of  third  persons,  237^. 

explaining  away,  237  j/. 

to  rebut  claim  of  accident,  3S9J- 
TIME,  verification  of,  201,  zozd*. 
TRACKS,  to  identify,  171-178,  202 //,  2027. 
TREASON,  amount  of  evidence  required,  363. 


u. 

UNCOMMUNICATED    THREATS,  237 //,  154^. 


VALUE,  in  larceny,  272  /. 

VALUE    OF    CIRCUMSTANTIAL    EVIDENCE,  34,  46^. 
VARIATIONS    IN    EVIDENCE    OF  CIRCUMSTANCES,  379. 
VENUE,  proof  of  by  circumstantial  evidence,  46/. 
VERIFICATION    OF    DATES    AND    TIME,  195,  202  f*. 

by  internal  contents,  197. 

by  type,  paper,  and  ink,  202  c*. 


448  INDEX. 

(Numbers  refer  to  pages.) 

VIOLENT    PRESUMPTIONS,  422  «. 
VOICE,  to  identify,  165,  202  c. 
VOLUNTARY    SURRENDER,  218,  237 «*. 


W. 


WAGON    TRACKS,  to  identify,  202/ 
WATER-MARK,  to  prove  date,  196. 
WEAK    WITNESS,  272^. 
WEAPONS,  reputation  for  carrying,  237/ 
WEBSTER,  PROF.  JNO.  W.,  trial  of,  359  7/. 
WEIGHT, 

of  evidence  required,  18  _^. 

of  circumstances,  422  «. 
WIFE,  presumption  as  to  crimes  of,  203,  237  <z. 
WIFE-MURDER, 

motives  for,  1547. 

concealment  of  marriage,  154^- 

relations  with  other  women,  154/,  417. 

quarrels  and  ill-feeling,  1541^*. 
WITNESSES, 

subornation  of,  113,  154/;?**. 

intimidation  of,  113,  154W** 

failure  to  call,  154  r**. 
WOUNDS,    81. 

to  identify,  166,  202  f. 


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